City of Oswego v. Oswego Canal Co.

— Any individual may lay out -* a way or thoroughfare through his, own land; and may dedicate it as such to the public use; but such dedication does not impose upon the towns in which the

The power of laying out, altering and discontinuing highways has been conferred exclusively on the commissioners of highways *of the respective towns. It „ has been their duty to cause to be described and recorded in the town-clerk’s office all public highways not already on record; to assess the highway labor upon the inhabitants of the town; to divide the town into road districts; and to assign a due proportion of the labor to each district. It was the evident intent of these statutes, that the labor assessed should be bestowed exclusively upon the highways established by the town authorities, and recorded in the town-clerk’s office. The duty of causing roads to be described and recorded evidently applied to such roads as had previously been laid out by public authority, and to such as had been used as highways for twenty years; and not to roads which had been laid out by individuals on their own lands. The whole structure of the highway acts forbids the idea, that the town is bound to adopt and to keep in repair every road which an individual may think proper to open through his own land, although he may dedicate it to public use in such manner as to preclude himself from shutting it up. Streets and roads dedicated by individuals to public use but not adopted by the local public authorities, or declared highways by statutes, are not highways, within the meaning of the highway acts; and there is no law by which any one can be compelled to keep them in repair.

The English cases cited by the plaintiff’s counsel on this point are inapplicable. In Underwood v. Stuyvesant ( 19 Johns. 186 ), Petrus Stuyvesant had surveyed and laid out a tract of land within the city of New York, into

On the 9th of April 1811, the lands on the east side of the Oswego river, now part of the city of Oswego, were * 265 1 Par* *^e town °f Frederi cksburgh (after- -* wards Scriba), and belonged to the state. On that day, an act was passed, directing the surveyor-general to lay out a portion of those lands into proper streets and house-lots, and so as to form, in the most convenient place, a public square, and to make a map thereof, &c., and the commissioners of the land-office were directed to sell, from time to time, so many of the lots as they should deem most advantageous to the state. ■ (Laws of 1811, c. 231.) In 1814, the lands were resurveyed, and in 1815, several of the lots thus laid out, were sold by the state to individuals. The streets were thus dedicated to the public use; but the statute directing the survey and sale, did not declare the streets so dedicated to be public highways, nor did the town of Scriba, by any act of its officers, adopt them as such. In laying out the village plot, and in selling the building lots, the state acted as the owner and proprietor of the land; and the effect of the survey and sale, in reference to the streets laid down on the map, was the same, as if the .survey and sale had been made by a single individual.

Under these circumstances, the Oswego Canal Company was incorporated in 1823. The objects of the incorporation were partly private and partly public. The company was authorized to construct the canal,

The canal was completed in 1826. It passed across a number of the streets, laid down upon the map made in pursuance of the directions of the act of 1811; but it does not appear by the case, to have crossed any public highway laid out by the authority of the town in which it lay. In 1828, the village of Oswego was incorporated, including the canal within its territorial limits. All the streets laid out for public uses therein, as the same were designated in the plot thereof, filed in the office of the secretary of state, were, by the 12th section of the act, declared public highways. The village was divided by the act into two road districts, with power to the trustees to subdivide them. The districts were exempted from the authority of the commissioners of highways of the towns of Oswego and Scriba; and the trustees of the village were clothed with the. powers, and charged with

Cayuga and Seneca streets first became public highways when the village was incorporated; they were not so, when the canal was made. The construction of the canal was a lawful act. If any damage arose from it to the proprietors of the lands within the plan of the village as laid out by the surveyor-general, the 6th and 7th sections of the act incorporating the canal company provides a mode in which it might have been appraised and paid for. If the construction and maintenance of the canal deprived any of them of their easement in the land derived from its dedication, it was a proper subject of appraisal, and this appears to have been their only remedy. As respects the village subsequently incorporated, the canal is to be regarded, so far as respects the burden of building bridges across it, as if it had been a natural stream. It had an actual and lawful existence, when the village corporation was created, ^nd no new ^obligations were imposed upon the canal company by the village charter. 267 ]

Having thus come to the conclusion, that the plaintiffs were rightly nonsuited, upon the merits of the case, it is unnecessary to notice the other points made on the argument. The judgment of the supreme court should be affirmed.

— I concur with the supreme court, and rest my opinion solely upon the third ground stated in their opinion, namely, that there is nothing to show that these streets were public highways, at the time the defendants were incorporated.

All there is upon that subject is, that the owner of the land sold it in lots, bounding them on those streets. This did not make those streets public highways; it