In re Chew — 118 N.Y.S. 935

Majority

p. 935

In re CHEW.

(Supreme Court, Appellate Division, Second Department.

October 8, 1909.)

Headnote

Municipal Corporations (§ 646^[1] ) — Order Laying Out Village Street — Crossing Jog oe Tidal Creek.

Where a village street is laid out along the bank of a tidal creek so as to cross a narrow jog or spur of the creek extending inland a few feet and constituting a mere break in the bank of the creek, this may be bridged, or even filled up, without constituting an encroachment on the creek; and

p. 936

permission in the order of the village trustees laying out the street to cross such jog is superfluous.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 646.^[1] ]

In the matter of the application of Emily C. Chew for writ of certiorari directed to the Board of Trustees of the Village of Babylon to review the proceedings of the trustees of the village of Babylon, in Suffolk county, in laying out a street, the relator being the owner of the land to be taken. The course of the street is along Sumpwams creek, a' small and shallow tidal stream which runs into Great South Bay. The relator owns a tract of land fronting on the said creek, and the proposed street will take the front thereof.

Affirmed.

Argued before HIRSCHBERG, P. J., and JENKS, GAYNOR, BURR, and RICH, JJ.

William G. Nicoll, for relator.

Albert D.. Haff, for respondent.

The order of the village trustees laying out and opening the street gives its west line by courses and distances, and the east line as along a certain tidal creek, with an addition that such east line should “extend out into the waters of said creek whenever necessary to make a width of fifty feet”; and the order makes two specified maps which were received in evidence and filed in the proceeding a part of the description. These maps show the said west line, and also the line.- of the creek. Being on a scale of 100 feet to the inch, it appears that the width between the said two lines of the street is always at least fifty feet, except at one place, where there is a narrow jog or spur (viz., about 35 feet wide) on the creek which runs into or a little over the said west line of the street. It is therefore objected by the appellant that at that point the street will be of no width for the reason that it cannot cross the said jog or spur, inasmuch as that would be to encroach on tidewater, although the order of the commissioners permits that to" be done. But to bridge or even fill up this trifling jog or break in the bank would be no encroachment on the creek. The custom is to fill them up. The permission of the order to carry the line out into the water where that would be necessary to get a road width of fifty feet was put in the order only because of the objection raised before the commission in respect of this spur or jog, and is superfluous.

The order should be affirmed.

Determination affirmed, with costs. All concur.