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Garretson v. Clark

1 Hill & Den. 162 Court N.Y. Sup. Ct. English

Delivered by Nelson, Ch. J.

Contents

Majority

p. 162
Garretson vs. Clark and others, Commissioners of Highways of &c.

Headnote

The commissioners of highways have power to alter a public highway without the intervention of a jury.
It is only in case of laying out a new road through improved lands, or of discontinuing an old one, that the intervention of the jury to examine and certify to the necessity and propriety of the 'measure is made a pre-requisite. Per Nelson, Ch. J.
Certiorari to the commissioners of highways of the town of Southfield, Richmond county. From the return it appeared that on the 17th of June, 1843, the commissioners made an order laying out and opening a highway in said town, by altering and discontinuing parts of an old road known as the “ Finger Board Road.” The location of the old road was departed from by the altered route, for the purpose of shortening the distance to another highway into which both the old and new roads led.
JY. Hill, Jr.,
on behalf of the relator, now moved that the order be vacated on the ground that the necessity for laying out the new road had not been certified by a jury.
P. Cagger, contra.

By the Court,

The only question in the case is, whether the commissioners of highways have power to alter a public highway without the intervention of a jury.

The general act is made applicable to the county of Richmond by an act passed in 1833 (Session Laws, chap. 97, § 2), and a reference to a very few provisions will show that the certificate of the jury is not required to authorize the action of the commissioners in the case mentioned. (1 R. S., 501, § 1, subd. 2 ; 514, §§ 58, 59.)

It is only in cases of laying out a new road through improved lands (1R. S., 514, §§ 61,62), or the discontinuing an old one (§81), that the intervention of the jury to examine

p. 163
and. certify to the necessity or propriety of the measure, is made a pre-requisite.

I think the case as presented should be regarded as simply a convenient alteration of a road, and then the power of the commissioners seems clear upon the sections above refered to.

Proceedings affirmed.