In re Mitchell

The appellants urge that public necessity does not require the opening of the proposed road, but we cannot examine that question, as, under the statute, the decision of the County Court confirming the decision of the commissioners that it is a public necessity is final. Highway law (Laws 1890, p. 1177, c. 568, § 89, as amended by Laws 1899, p. 1533, c. 703); Matter of De Camp, 151 N. Y. 557 , 45 N. E. 1039 .

On the hearing before the commissioners, a deed from Franklin C. Cornell to the city of Ithaca, dedicating and granting to the city and the public in general, for a highway, a strip of land 49% feet wide, from the western end of the proposed road to the easterly end of Maple avenue, was received in evidence over the objection of the appellants, and an exception was taken. I think the deed was properly received, under the circumstances existing at the time it was offered. While it is true that the commissioners were not concerned with the question of opening any street or highway in the city of Ithaca, which was the subject of this deed, yet the record shows that the appellants had been urging before the commissioners that the proposed new road ended in a cul-de-sac, and that such a road was prohibited by law. It is not necessary to determine whether such a road is so prohibited, but here was a situation where, if the proposed road was not finally to end in a cul-de-sac, and was eventually to connect with Maple avenue, other and separate proceedings must be taken, first, under the city charter, to lay out as a street the portion in the city of Ithaca; and, second, under the railroad law, to get the right to cross the Lehigh Valley Railroad tracks.

Cornell had by a prior deed conveyed lands to the railroad company for its right of way and for its depot, reserving a private right of way to cross the tracks at grade, and he owned adjoining lands. While he could not by the deed objected to give to the public a highway over such right of way, yet, so far as the strip of land therein described, and which he there dedicated to the public as a highway, was outside of the lines of the railroad’s right of way, the deed was evidence showing that one important step had been taken in preventing what the appellants claimed was a situation fatal to the lawful opening of the proposed road. So regarded, no injury was done in receiving it. While under other circumstances the deed was not material, yet, by reason of the attitude of the appellants, I think it was not reversible error to receive it under the circumstances presented here, any more than it would have been if it had been shown that proceedings were pending under the city charter or under the railroad law to open up the entire way in the city as a street to connect with the proposed highway in the town. It was proper, I think, to show the entire situation at the point in question.