Carris v. Commissioners — 2 Hill & Den. 443

Majority

p. 443

Carris vs. The Commissioners of Highways of Waterloo.

Headnote

Where'the commissioners of highways laid out a road through a corn-house, without the consent of the owner, the building having been removed and placed upon the route of the contemplated road after an application made and notice given to lay it out; held, that the proceeding was regular, inasmuch as the building had evidently been removed in fraud of the statute.

Where the notice and application was to alter a road, and to discontinue so much thereof as should not be embraced in the alteration, and the freeholders certified in favor of the alteration “as in said notice applied for,” whereupon the commissioners determined upon making the alteration, and ordered so much of the old road as was not included within the new one to be discontinued : Held, that the proceedings were regular and effectual, both in respect to the discontinuance of the old road and the laying out of the new one.

Certiorari to the commissioners of highways of the town of Waterloo, Seneca county, to remove their proceedings in the matter of altering and discontinuing a certain road. The notice and application to the commissioners was, ‘to alter the road “leading southerly from, &c. to, &c., by making the same straight, and that so much of said road, &c. as shall not be embraced in said alteration, be discontinued.” The certificate of the twelve freeholders was, that the alteration of the road, “as in said notice applied for,” was, in their opinion, necessary and proper. The commissioners decided in favor' of the alteration, and made out and subscribed a certificate of such determination, particularly describing the road as altered, and ordering so much of the old road as was not included within the new one to be discontinued. The new road, as laid out, embraced within its bounds the plaintiff’s corn-house, which formerly stood in the old road, but had been removed within the contemplated limits of the new one after the above application was made to the commissioners, and notice given. The road was laid out without the consent of the plaintiff.

p. 444

J. K. Richardson, for the plaintiff in error.

J Know, for the defendants in error.

By the Court,

The.most important question in this case is, whether the commissioners were justified in laying out the road through the corn-house of the plaintiff.

The statute which in terms forbids the laying out of roads through buildings, &c. without the owner’s consent, (1 R. S. 511, § 61, 2d ed.) should be liberally construed so as to effectuate the obvious intent of it, which is, to protect the permanent buildings and fixtures of the occupant over whose land a road is contemplated. But the court, in construing it, should also guard against abuses of the protection thus afforded, and see that it is not perverted to ends never intended by the legislature. It is manifest that the erection or removal of a building, after an application for a highway, for the very purpose of defeating it, presents a case not within the mischief intended to be guarded against. It is the fault of the party himself if the. road passes through his building, not the operation of the law, or act of the commissioners. To say that any fixture erected upon the route at any time before a road is actually laid out, would enable an occupant at all times to defeat the law and prevent a highway through any part of his premises, is a proposition too absurd to be tolerated.

It is quite obvious from the return, that the plaintiff has no reasonable ground of complaint within this exposition of the statute, as his building was probably moved pending the application, and for the very purpose of defeating the proposed alteration. The commissioners, therefore, had a right to regard it as a building or fixture not within the contemplation of the law, or the mischief against which it was intended to guard.

Whether the old road not embraced within the new one was properly discontinued or not, is a question that cannot

p. 445

affect the regularity of the proceedings in laying out the latter. If the former has not been discontinued, it is still competent for the commissioners to act in the matter. .But I see no reason to doubt that it has. The application was to alter the road according to the route described, and discontinue the old, so far as not included in the bounds of the new one. The certificate of the twelve freeholders is to the same effect, and the order of the commissioners prescribing the alteration expressly provides, that so much of the old road as is not embraced within the limits of the new one, shall cease to be any part of the road.

The freeholders and commissioners have both acted as well upon the subject of discontinuing the old, as of laying out the new road, and the proceedings are as effectual in the one instance as in the other.

Proceedings affirmed.