Majority
p. 711In the Matter of the Alteration of the Four Corner Road in Richmond County. (Supreme Court, General Term, Second Department, Filed February 9, 1891.)
Headnote
Highways—Opening.Where it appears that a proposed road will run through orchards, house enclosures and a school; that it will benefit very few persons and very slightly; that the cost will be heavy, and the road it will displace is sufficient for the public use, consent to its opening should not be granted.
Application to confirm order of the county judge of Richmond county, affirming decision of commissioner of highways “ that the public interest will be greatly promoted by the laying out and opening of a road ” from the Four Corner road to the Richmond road.
The proposed road is about 1,500 or 1,700 feet long, starting from the present junction of the Four Corner road and Richmond road, and running in a curved line until it intersects the same road again at the top of the hill, ostensibly for the purpose of avoiding an alleged inconvenient grade of the present road, but really, as claimed by the respondents, for the purpose of opening up and improving certain lands of George and H. B. Cromwell, through which it passes, at the expense of the town.
The only other lands through which it passes belong to Mrs. Mary A. Yreeland and the trustees of school district bio. 3 of Middletown and Southfield, who all oppose the application.
If the order is affirmed, it will take the school house and grounds now occupied and used as a school, and the door yard and orchard of Mrs. Yreeland, within a few feet of her dwelling house, and so cutting up and dividing the premises as to substantially destroy their value.
p. 712
Besides the door yard and orchard of Mrs.Vreeland, it passes for about 500 feet through other land of hers, detached and enclosed and used as a pasture for her cattle.
The lands of the Cromwells, through which it passes, are enclosed and improved lands. They did not join in the application before the commissioner, and although Mr. George Cromwell states in his testimony before the county judge that he and his brother consent, they have not given their consent in writing, as required by § 1, chap. 481, Laws of 1875, nor executed any release of damages.
Sidney F. Rawson, for highway com’r and the Cromwells; George J. Greenfield, for resp’ts.
The consent of the county judge ought not to have been granted upon the merits of the application. The road asked for takes orchards and house enclosure and a schoolhouse. By the general law in rural districts a highway could not be laid out through these lands. In cases of great public importance and convenience the property owners must give way to the public necessity. The present "case does not fill these requirements. The road benefits very few people, and very slightly. The cost will be quite heavy, and the road, which this one is to displace, is sufficient for the public use.
The order should be reversed, with costs, and motion denied, with costs.
Pratt and Dykman, JJ., concur.