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iransportal,
HIGH w AY MAN UAL
OF THE
STATE OF NEW YORK.
Published in Pursuance of Chapter 655
of the Laws of 1893.
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ALBANY :
JAMES B. LY ON, PRINTER.
1893.

Jºva…ºft.*
CHAPTER 655 OF THE LAWS OF 1893.
An Act in relation to the publication and distribution of the
highway law.
APPROVED by the Governor May 9, 1893. Passed, three-fifths being present,
The People of the State of Wew York, represented in Senate
and Assembly, do enact as follows:
Section 1. The governor shall designate some proper person to
prepare and publish on or before July one, eighteen hundred and
ninety-three, a compilation of the highway laws of this state,
defining the powers and duties of highway officers and resident
taxpayers. Such manual shall also contain diagrams and prac-
tical suggestions and directions for grading and building roads,
maintaining and improving the same, and removing obstructions
therefrom; and also practical suggestions in regard to tree cul-
ture, and the laying out of lawns along highways. The state
engineer and surveyor shall cause to be prepared and furnished
such maps, diagrams and other drawings as the governor shall
require for such compilation. Such compilation shall not be pub-
lished until approved by the governor.
§ 2. The person so designated to prepare and publish such colm-
pilation shall forward to each town clerk as many copies thereof
as are required for distribution by this section. Each town clerk,
immediately upon the receipt of such manuals, shall retain one
for his office and distribute free of charge one copy to each com-
missioner of highways and overseer of highways in his town, and
the cost thereof, which shall not exceed fifty cents per copy, shall
be a town charge, and shall be audited and allowed as other town
charges at the next meeting of the town board. Such manuals
shall remain the property of the town, and upon the expiration of
the term of office of each commissioner and overseer of high-
ways shall be turned over by him to the town clerk, who shall
deliver the same to the successors in office of such commissioners
and overseers. The cost of such manuals to all other persons
shall not exceed seventy-five cents a copy.
§ 3. Each supervisor shall, on or before March fifteen, eighteen
hundred and ninety-four, pay to the person designated by the
governor to compile such manual the amount due for the books
forwarded to him. From the moneys so received, the compiler
shall pay the cost of preparing and publishing such compilation.
§ 4. This act shall take effect immediately.
PREF ACE.
&
In pursuance of chapter 655 of the Laws of 1893, the Governor
of New York appointed Mr. N. G. Spalding and the Commis-
sioners of Statutory Revision to prepare and publish the highway
manual provided for by that act. This volume is respectfully
presented as the fulfillment of the duties thus devolved upon them.
The commissioners of statutory revision are mainly responsible
for the preparation of the law of the subject, consisting of
Part I.- Constitutional and statutory provisions relating to
highways.
Part II.- Explanatory analysis of the statutes, with forms.
Mr. Spalding is mainly responsible for the preparation of
Part III.- Practical suggestions on highway construction and
maintenance.
The volume has been prepared with special reference to its use
by laymen, rather than by lawyers or civil engineers. Our aim
has, therefore, been to make the work practical and suggestive,
rather than to attempt a technical or exhaustive treatment of
either the legal or engineering branches of the subjects treated.
N. G. SPALDING,
DANIEL MAGONE, tº &
CHARLEs A. coli.IN, ºš.
JOHN J. LINSON,
Appointees under Chap. 655, Z. 1893.
ALBANY, N. Y., June 24, 1893.
TABLE OF CONTENTS.
PART I. CoMSTITUTIONAL AND STATUTORY PROVISIONS RELATING
To HIGHWAYs.
PART II. ExPLANATORY ANALYSIs of THE STATUTEs witH FoRMS.
PART III. PRACTICAL SUGGESTIONS ON ROAD CONSTRUCTION AND
MAINTENANCE.
PART I.
ConstitutionAL AND STATUTORY PRovisions RELATING to
HIGHw AYS.
PAGE
The Highway Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3— 52
Selections from the town law relating to highways . . . . . . . . . . 53— 57
Selections from the county law relating to highways. . . . . . . . . 58– 66
Selections from the State constitution relating to highways. .. 67–68
Selections from the Railroad Law relating to highways . . . . . . 69— 70
Sections from the Transportation Corporation Law relating to
highways . . . . . . . . . . . . . . . . . . . . . . . . . . . tº e s e e s s e º e < * * * * * * 71— 72
Miscellaneous laws relating to highways. . . . . . . . . . . . . . . . . . . . 73– 86
Selections from the Penal Code relating to highways . . . . . . . . 87— 88
Selections from the Code of Civil Procedure relating to high-
WayS • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89–105
PART II.
CHAPTER I. The maintenance of highways.
II. Establishment and discontinuance of highways.
III. Highway officers.
IV. Use of the highway.
V. Bridges.
VI. Actions by and against towns and highway commission-
ers relating to the highways. &
viii
TABLE OF CONTENTs.
CHAPTER I.
The maintenance of highways.
I. Systems of working.
II. Assessment of labor.
III. Credits and rebates.
IV. Purchase of tools and machines.
V. Notice to perform labor.
VI. Commutation.
VII. Teams; substitutes.
VIII. Acquisition of gravel.
IX. Penalties for refusing to work.
X. Unperformed labor.
XI. Opening obstructed highways.
XII. Rights in connection with working the highways.
XIII. Extraordinary repairs.
YIV. Miscellaneous matters.
SECTION 1.
SECTION
I. SYSTEMS OF WORKING,
PAGE
Labor system. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
2. Money system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
3. County system. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
4. Change of system. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
II. ASSESSMENT OF LABor.
5. Creation of districts; appointment of overseers. . . . . 113
6. Lists of persons liable to labor. . . . . . . . . . . . . . . . . . . . 115
7. Meeting of commissioners . . . . . . . . . . . . . . . . . . . . . . . 115
8. Lists of non-resident lands. . . . . . . . . . . . . . . . . . . . . . . 116
9. Persons liable to personal assessment. . . . . . . . . . . . . . 116
10. How assessment is made. . . . . . . . . . . . . . . . . . . . . . . . . 117
11. Assessments to occupants. . . . . . . . . . . . . . . . . . . . . . . . 120
12. Credit to persons living on private road. . . . . . . . . . . . 120
13. Reassessments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
14. Copies of lists for overseers. . . . . . . . . . . . . . . . . . . . . . 120
15. Assessment to work highways laid out for a year
but not yet opened or worked. . . . . . . . . . . . . . . . . 120
16. Non-resident appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
17. Additional assessment by overseers. . . . . . . . . . . . . . . . 122
TABLE OF CoNTENTs. ix
III. CREDITS AND REBATEs.
PAGE,
SECTION 18. Deduction by tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
19. Rebates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
20. For shade trees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
21. For sidewalks . . . . . . . . . . . . . . . . . . . . . . . tº gº is º ºr e º 'º º is wº 125
22. For watering-troughs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
23. For the removal and replacing of fences. . . . . . . . . . . 127
24. For street lamps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
25. For wagon tires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
IV. PURCHASE OF Tools AND MACHINEs.
SECTION 26. Road machines, scrapers and ploughs. . . . . . . . . . . . . . 128
27. Stone crushers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
V. NoTICE TO PERFORM LABOR . . . . . . . . . . . . . . . . 128
VI. CoMMUTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
VII. TEAMs; SJBSTITUTEs.
'SECTION 31. Teams. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
82. Substitutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
VIII. ACQUISITION OF GRAVEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
IX. PENALTIES FOR REFUSING TO WORK. . . . . . . . . . . . . . . . . . . 131
X. UNPERFORMED LABOR . . . . . . . . . . . . . . . . . . . . . . 2 s a e e e s s a 132
XI. OPENING OBSTRUCTED HIGHWAYs... . . . . . . . . . . . . . . . . . . 134
IXII. RIGHTS IN CONNECTION witH WorkING THE HIGH way. . . . 135
XIII. ExTRAORDINARY REPAIRs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
YIV. MISCELLANEOUs MATTERs.
SECTION 39. Accounts for services and materials . . . . . . . . . . . . . . . 138
40. Additional tax where $500 is insufficient. . . . . . . . . . . I 39
41. License fees applicable to highway purposes. . . . . . . . 139
42. Mile-stones and guide-posts . . . . . . . . . . . . . . . . . . . . . . 139
43. Sign-boards and flagmen at railroad crossings. . . . . . . 140
44. Authority of board of supervisors to borrow money
for highway purposes. . . . . . . . . . . . . . . . . . . . . . . . . . 140
45. Survey and records of highways. . . . . . . . . . . . . . . . . . 141
46. Highways through unimproved land. . . . . . . . . . . . . . . 142
47. Powers of commissioners in relation to overflow of
Waters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
48. Alteration of State roads . . . . . . . . . . . . . . . . . . . . . . . . 143
49. Injury to highway or bridge . . . . . . . . . . . . . . . . . . . . 143
Il
TABLE OF CONTENTs.
CHAPTER II.
Establishment and discontinuance of highways.
I. Establishment of highways.
II. Private roads.
III. Abandonment of highways.
IV. County highways.
W. Miscellaneous provisions.
I. ESTABLISHMENT OF HIGHWAYs.
PAGE,
SECTION 1. How established. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
2. Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
3. Dedication and acceptance. . . . . . . . . . . . . . . . . . . . . . . 146
4. Order of laying out highway upon dedication thereof, 147
5. Release to be filed and recorded . . . . . . . . . . . . . . . . . . 148
6. Fee, in whom vested . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
7. Acceptance . . . . . . . . . . . . . . . . . s e s & s e º e º e s tº e s e e ... 149
8. Consent of town board . . . . . . . . . . . . . . . . . . . . . . . . . . 149
9. Application to highway commissioners . . . . . . . . . . . . 151
10. Application for commissioners to lay out, etc. . . . . . . 152
11. Appointment of commissioners . . . . . . . . . . . . . . . . . . . 154
12. Service of notice of appointment. . . . . . . . . . . . . . . . . . 154
13. Qualifications of commissioners. . . . . . . . . . . . . . . . . . . 154
14. Notice of meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
15. Service of notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
16. Proceedings of commissioners . . . . . . . . . . . . . . . . . . . . 156
17. Decision in favor of application. . . . . . . . . . . . . . . . . . . 157
18. Decision denying application. . . . . . . . . . . . . . . . . . . . . 159
19. Motion to confirm, vacate or modify. . . . . . . . . . . . . . . 159
20. Proceedings on motion to confirm. . . . . . . . . . . . . . . . 160
21. Proceedings on motion to vacate or modify . . . . . . . . 161
22. Limitations on laying out highways. . . . . . . . . . . . . . . 162
23. Consent of owner . . . . . . . . . . . . . tº º ſº tº º e º 'º e º e º 'º º . . . . 168
24. Proceedings where owner refuses consent . . . . . . . . . . 165
25. Order of county judge where owner refuses consent, 166
26. Proceedings before general term. . . . . . . . . . . . . . . . . . 167
27. Certificate of highway commissioners. . . . . . . . . . . . . . 167
28. Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
29. How assessed. . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . 168
30. Damages allowed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
31. To whom allowed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
TABLE of ContFNTs. xi
SECTION
SECTION
SECTION
PAGE
32. Damages fixed by agreement. . . . . . . . . . . . . . . . . . . . . 170
38. Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 170
34. Width of road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
35. Description of route. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
36. Fences to be removed . . . . . . . . . . . . . . . . . . . . . . . . . . . I72
37. Highways or roads along division lines . . . . . . . . . . . . 172
38. Costs; by whom paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
39. Costs on reassessment of damages. . . . . . . . . . . . . . . . . 173
40. Damages assessed and costs to be allowed ........ . 173
41. Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
42. Papers, where filed, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
43. Costs on motion . . . . . . . . . . . . . . . . . is e º sº e º e º sº e . . . . . 174
II. PRIVATE ROADs.
1. Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
2. By necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
8. By prescription. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
4. By grant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
5. Application to highway commissioners. . . . . . . . . . . . . 176
6. Juries to determine necessity and assess damages ... 176
7. Application and notice delivered to applicant. . . . . . . 177
8. Service of application and notice . . . . . . . . . . . . . . . . . l'77
9. Selection of jurors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
10. Summoning jury and place of meeting. . . . . . . . . . . . . 178
11. Selection of additional jurors. . . . . . . . . . . . . . . . . . . . . 179
12. Proceedings of jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
13. Value of highway discontinued and verdict of jury. . 180
14. Papers to be recorded in town clerk’s office . . . . . . . . 180
15. Damages to be paid before opening road. . . . . . . . . . . 181
16. Motion to confirm, vacate or modify. . . . . . . . . . . . . . . 18I.
17. Costs of new hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
18. Purposes for which private roads may be used. . . . . . 182
III. ABANDONMENT OF HIGH ways.
1. Modes of abandonment. . . . . . . . . . . . . . . . . . . . . . . . . . . 182
2. Failure to open and work . . . . . . . . . . . . . . . . . . . . . . . 182
3. Disuse. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
xii
TABLE OF CONTENTs.
TV. County HIGHWAYS,
PAGE
SECTION 1. Application to lay out, alter or discontinue. . . . . . . ... 184
2. Service of notice. . . . . . . . . . . . . . . tº e - e º e e tº e º e g tº tº . . . . 185
3. Order to be made by board of supervisors . . . . . . . . . . 185
SECTION 1.
V. MISCELLANEOUs Provisions.
Boards of supervisors may authorize towns to borrow
money for highway purposes . . . . . . . . . . . . . . . . . . 186
2. The raising and expenditure of such moneys. . . . . . . 187
3. Survey and record of highways . . . . . . . . . . . . . . . . . . 188
4. Highways in counties of more than 300,000 acres of
unimproved land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
5. Alterations of State road . . . . . . . . . . . . . . . . . . . . . . . . 189
6. When officers of different towns disagree about
highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
7. Certificate of disagreement . . . . . . . . . . . . . . . . . . . . . . 190
8. Order appointing commissioners . . . . . . . . . . . . . . . . . . I90
9. Proceedings of commissioners. . . . . . . . . . . . . . . . . . . . 191
10. Order confirming, modifying or vacating report of
commissioners . . . . . . . . . . . . . . . . . . . . . : G tº tº º e º ºs e º I92
11. Papers to be filed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
; 2. Difference about improvements . . . . . . . . . . . . . . . . . . . 192
13. Highway in two or more towns. . . . . . . . . . . . . . . . . . . 193
14. Laying out highways upon town lines . . . . . . . . . . . . . 194
15. Final determination, how carried out. . . . . . . . . . . . . . 195
CHAPTER III.
Highway officers.
I. Commissioners of highways.
II. Overseers of highways.
SECTION
I. CoMMISSIONERS of HIGHw AYs.
1. Election and term of office . . . . . . . . . . . . . . . . . . . . . . . 196
2. Number, change of . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
3. Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
4. Oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
5. Undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
6. Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
7. Vacancies . . . . . . . . . e Q tº C & s a s e º us tº tº dº ſº tº º 'º e º 'º e g º it e º 'º 20I.
8. Holding over. . . . . . . • * > * > * > * > * * > . . . . . . . . . . . . . . . . 202
TABLE OF CoNTENTs. xiii
}
*
PAGE
SECTION 9. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . & e º O 9 tº º 203
10. Delivery of books and papers to successor. . . . . . . . . . 203
11. Treasurer of highway commissioners . . . . . . . . . . . . . . 203
12. Powers of one commissioner . . . . . . . . . . . . . . . . . . . . . 205
13. Powers of majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
14. General powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
15. Meetings of commissioners. . . . . . . . . . . . . . . . . . . . . . . 206
16. Commissioners may administer oath. . . . . . . . . . . . . . . 206
17. Description and record of highways. . . . . . . . . . . . . . . 206
18. Commissioners as fence viewers. . . . . . . . . . . . . . . . . . . 206
19. Duty of commissioners as to fires in woods . . . . . . . . 207
20. Indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
21. Reports of commissioners. . . . . . . . . . . . . . . . . . . . . . . . 207
II. Overs EERs of HIGHWAYS.
SECTION 22. Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
* 23. Penalty for refusal to serve . . . . . . . . . . . . . . . . . . . . . . 210
24. Vacancy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
25. Compensation . . . . . . . . . . . _2 - - - - - - - - - - - - - - - - - - - - - - 210
26. General powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
27. Indictment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
28. Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
29. Collection of penalties. . . . . . . . . . . . . . . . . . . . . . . . . . 213
80. Annual return. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
CHAPTER IV.
Use of the highway.
I. By abutting owners and occupants.
II. By the public generally for travel and transportation.
III. By corporations and others for public purposes.
IV. Obstructions and encroachments.
I. By ABUTTING Own ERS AND OCCUPANTs.
SECTION 1. Title of contiguous owner. . . . . . . . . . . . . . . . . . . . . . . . 217
2. Rights in general. . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
3. Presumption in relation to the fee . . . . . . . . . . . . . . . . 218
4. Fee in municipality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
f 5. Carrying on business in highway. . . . . . . . . . . . . . . . . . 219
6. Maintaining a nuisance. . . . . . . . . . . . . . . . . . . . . . . . . 220
7. Noisome or unwholesome substance in highway .... 220
XIV
TABLE OF CoNTENTs.
II. BY THE
PAGE
SECTION 8. Rights in general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
9. Right to use land of adjoining owners. . . . . . . . . . . . . 221
10. Use of the road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
11. Travelers in vehicles . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
12. Travelers on horseback . . . . . . . . . . . . . . . . . . . . . . . . . . 224
13. Travelers on foot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
14. Rights of bicycles and tricycles . . . . . . . . . . . . . . . . . . 225
15, Right to stop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
16. Right to drive cattle in highway . . . . . . . . . . . . . . . . . 226
17. Steam traction engines and dangerous animals. . . . . . 226
18. Liability for breaking bridge. . . . . . . . . . . . . . . . . . . . . 226
19. Running horses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
20. Driving over bridges. . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
21. Intemperate drivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
22. Owners of carriages liable for acts of drivers . . . . . . . 227
28. Leaving horses untied . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
24 Depasturing highways . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
III. By CoEPORATIONS AND OTHERS FOR PUBLIC PURPOSEs.
SECTION 25, General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
26. Steam railroads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
27. Intersection of highways by railroad . . . . . . . . . . . . . . 229
28. Street railroads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
29. Elevated railroads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
30. Telegraph and telephone lines . . . . . . . . . . . . . . . . . . . . 231
31. Pipe lines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
32. Gas, water and sewer pipes; electric light poles. . . . . 232
33. Water-works corporations. . . . . . . . . . . . . . . . . . . . . . . . 233
34. Turnpike and plank-road corporations . . . . . . . . . . . . . 234
IV. OBSTRUCTIONS AND ENCROACHMENTs.
SECTION 35. General doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
36. Carrying on business in highway. . . . . . . . . . . . . . . . . . 235
37. Abatement of nuisances. . . . . . . . . . . . . . . . . . . . . . . . . 236
38. Liabilities for maintaining obstructions. . . . . . . . . . . . 237
39. Loose stones in highway . . . . . . . . . . . . . . . . . . . . . . . . . 238,
40. Fallen trees in the highway. . . . . . . . . . . . . . . . . . . . . . . 238
41. Weeds in highway . . . . . . . . . . . . . ". . . . . . . . . . . . . . . . 288
42. Snow in highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
PUBLIC GENERALLY FOR TRAVEL AND, TRANSPORTATION.
TABLE OF CONTENTs. XV
CHAPTER V.
Bridges.
PAGE.
SECTION 1. Liability of towns and of commissioners of highways
for damages from defects in bridges. . . . . . . . . . . . . . 242
2. When expenses of bridges to be borne by towns and
when by counties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
3. Construction and maintenance of bridge on newly laid
out highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
4. Rebuilding of bridge destroyed by the elements. . . . . 246
5. Proceedings by commissioners of highways to secure
joint action of towns of the same county in building
and maintaining bridges crossing town lines . . . . . . 246
6. Proceedings by freeholders to secure joint action of
towns in building and maintaining bridges crossing
town lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
* 7. Unsafe toll bridges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
8. Criminal liability for injuries to bridges. . . . . . . . . . . . . 250
CHAPTER VI.
Actions by and against Towns and Highway Commissioners
Relating to the Highways.
SECTION 1. Liability of towns and commissioners for defective
highways and bridges. . . . . . . . . . . . . . . . . . . . . . . . . . 251
2. What constitutes neglect of commissioners . . . . . . . . . 252
3. Commissioners personally liable for trespasses . . . . . . . 254
4. Actions by and against towns upon contracts made by
highway commissioners. . . . . . . . . . . . . . . . . . . . . . . . . 254
5. Claim for damages must be presented within six
months. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
6. Actions by towns for injuries and obstructions upon
highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
7. When judgments and expenses of actions by and
against town officers are a town charge. . . . . . . . . . . 256
xvi
TABLE OF CONTENTs.
BART III.
PRACTICAL SUGGESTIONS ON HIGHWAY "CoNSTRUCTION AND
MAINTENANCE.
PAGEs
CHAPTER I. Sketches of ancient and modern roads; extracts from
Governor Flower's message. . . . . . . . . . . . . . . . . . . . 261
Road construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
II.
III.
IV.
. Profit and loss to the farmers based upon the chal
Extract on Construction of Macadam Road, from
prize essay written by Henry Irwin, C. E., of
Montreal, Canada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
“Common Sense in Road Building,” by Isaac B.
Potter, editor of “Good Roads” . . . . . . . . . . . . . . . 291
“Road Improvement and Maintenance in the State
of New York,” by Chapman L. Johnson, C. E.,
Deputy State Engineer and Surveyor . . . . . . . . . . . 300
Road machines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
Systems of highway construction and maintenance 4.
acter of our highways. . . . . . . . . . . . . . . . . . . . . . . .
P A R T I.
. . Sf
Constitutional and Statutory Provisions
Relating to Highways.
THE HIGHWAY LAW.
ºmºsºm-º-mº -º-º-º-º-º-º-º:
AN ACT in relation to highways, constituting chapter nineteen of
the general laws.
CHAPTER NINETEEN OF THE GENERAL LAWS
THE EIIGHWAY LAw.
ARTICLE I.—Highway officers, their general powers and duties. (§§ 1–24).
II.-Assessment for highway labor. (§§ 30–53).
III.-The duties of overseers of highways, and the performance of high-
way labor. (§§ 60–74).
IV.-Laying out, altering and discontinuing highway and laying out
private roads. (§§ 80–123).
W.—Bridges. (§§ 130–145).
Vl.—Miscellaneous provisions. (§§ 150–164).
VII.-The regulation of ferries. (§§ 170–174).
VIII.-Repealing and other clauses, (§§ 180-183),
ARTICLE I.
HIGHWAY OFFICERS, THEIR GENERAL POWERS AND DUTIES.
SECTION 1. Short title.
2. Treasurer of highway commissioners.
3. Powers of one commissioner.
4. General powers of commissioners.
5. Mile-stones and guide-boards.
6. Road machines and implements.
7. Stone-crushers and materials.
8. Custody of stone-crushers.
9. Additional tax.
10. Extraordinary repairs of highways or bridges.
11. Auditing expense thereof.
12. Accounts, how made out,
13. Unsafe toll-bridge.
14. Water pipes in highways.
15. Actions for injuries to highways.
16, Liability of towns for defective highways.
17. Action by town against commissioners,
18. Audit of damages without action,
4. HIGHWAY MANUAL OF NEw York.
f
SECTION 19. Reports of commissioners.
20. General duties of overseers.
21. Opening obstructed highways.
22. Penalties against overseers.
23. Penalties, how collected.
24. Compensation of overseers.
SECTION 1. Short title.— This chapter shall be known as the
highway law.
§ 2. Treasurer of highway commissioners.— When there is
more than one commissioner of highways in any town, they shall des-
ignate one of their number to be treasurer. If they fail so to do,
the commissioner longest in office shall be the treasurer; and all
money collected for highway purposes, or belonging to the highway
fund of the town, shall be paid to him. Before receiving such money,
he shall execute to the town an undertaking, to be approved by the
supervisor, to the effect that he will faithfully account and pay over
to any officer or person entitled thereto, any money that may come
into his hands as such treasurer.
§ 3. Powers of one commissioner.—When any town has but
one commissioner of highways, the term, commissioners of highways,
when used in this chapter, shall mean such one commissioner.
§ 4. General powers of commissioner.— The commissioners
of highways in the several towns, shall have the care and superintend-
ence of the highways and bridges therein, except as otherwise spe-
cially provided in relation to incorporated villages, cities and other
localities; and they shall
1. Cause such highways and bridges to be kept in repair, and give
the necessary directions therefor;
2. Cause such highways as shall have been laid out, but not suffi-
ciently described, and such as shall have been used for twenty years,
but not recorded, to be ascertained, described and entered of record
in the town clerk’s Office; -
3. From time to time, not oftener than once a year, divide the town
into so many highway districts as they shall judge convenient, by
writing, under their hands, to be filed with the town clerk, and by
him to be entered in the town book, at least ten days before an annual
town meeting ;
4. Assign to each of the highway districts such of the inhabitants
and corporations liable to work on highways, as they shall think
proper, having regard to proximity of residence as much as may be;
5. Within one week after each annual town meeting, make and file
HIGHwAY MANUAL OF NEw York. 5
with the town clerk, a written appointment of a resident of each dis.
trict, to be overseer of highways therein. The town clerk shall notify
each overseer of his appointment, within ten days after the filing
thereof; and the person so appointed and notified, shall thereupon
become and be the overseer of highways within his district for one
year, and until his successor shall be appointed. If any person so
appointed overseer, shall refuse to serve, or his office, shall become
vacant, the commissioners shall in like manner appoint some other
person to be overseer;
6. Require overseers of highways to warn all persons and corpora-
tions assessed to work on highways, to come and work thereon, with
such teams and implements, and at such times as the said commis-
sioners, or any of them shall direct;
7. Expend all moneys raised and collected from the town at large
for highway purposes, upon the highways and bridges situated in, or
upon the borders of the town, or highway districts assigned to the
town in which such moneys were raised and collected, in such pro-
portion as they may deem just and proper.
8. Have power to enter upon the lands of any person adjoining
any of the rivers, streams or creeks of the state, drive spiles, throw
up embankments, and perform such other labor as may be necessary
upon the banks of such rivers, streams or creeks for the purpose of
keeping them or any of them within their proper channels and pre-
venting their encroachment upon any of the highways of the state,
and to protect such highways and the property of the town from
damages by reason of such rivers, streams or creeks washing away
their embankments, or changing the location of the channels, and to
agree with the owner of any such lands upon the amount of damages,
if any, sustained by him in consequence of such entry upon his lands
and the performance of the work herein authorized, and the amount
of the damages so agreed upon shall be a town charge, and shall be
audited and paid in the same manner as other town charges. If the
commissioners are unable to agree with such owner upon the amount
of damages thus sustained, the amount thereof shall be ascertained
and determined and paid in the same manner as damages for the lay-
ing out and opening of highways are required by law to be ascertained,
determined and paid, where the commissioners and land owner are
unable to agree upon the amount thereof. [This subdivision added
by L. 1891, chap. 212.]
§ 5. Mile-stones and guide-boards.-Commissioners of high-
ways may cause mile-boards or stones, to be erected upon the high-
6 HIGHWAY MANUAL OF NEw York.
ways in their town as they think proper; they shall also cause guide-
posts, with proper inscriptions and devices, to be erected at the in-
tersections of such highways therein, as they may deem necessary,
which shall be kept in repair, at the expense of the town, by the
overseers of the highways of the districts in which they are respect-
ively located.
§ 6. Road machines and implements.-Commissioners of high-
ways may, upon the request of one or more overseers of the high-
way districts of their town, contract for and purchase for such
district or districts, upon credit or otherwise, a good and sufficient
iron or steel shod scraper, road machine and plow, or either of them,
for the use of such district or districts, which shall be used, cared
for and owned by such district or districts jointly. Such imple-
ments shall be paid for out of the highway tax of the district or
districts, for which they are purchased, and may be paid for, in
annual installments, not exceeding five. If purchased for more
than one district, the amount paid by each, shall be in proportion to
the amount of its highway tax. No more than one-half of the
highway tax of any district shall be applied in payment therefor in
any one year. The portion of such tax so applied, shall be required
to be paid in money, and be assessed and levied upon the property
of such district or districts, and collected in the same manner as
other town charges are assessed, levied and collected, except that
the amount thereof shall be put in a separate column upon the tax
roll, and the board of supervisors of the county shall cause the sum
as certified by the town board, to be levied upon the taxable property
of such highway districts.
§ 7. Stone-crushers and materials.—The commissioners of
highways of any town may, when authorized by a majority vote of
the electors voting thereon, by ballot, at the annual or at a special
town meeting, purchase a machine for crushing stone, to be used for
the improvement of the highways of the town, and when so au-
thorized, may also expend a sum not exceeding two thousand dollars
in any one year, for the purpose of purchasing stone, and quarrying,
breaking, crushing and placing the same on the highways, and de-
fraying the expenses of operating such machine; and shall present
the account and vouchers for such purchases and expenses to the town
board for audit, and the amount audited shall be levied and collected
as other town audits.
§ 8. Custody of stone-crushers.-Such machine, when pur-
chased, shall be under the care and custody of the commissioners of
HIGHWAY MANUAL OF NEw York. 7
highways of the town; and where there is an incorporated village
constituting a separate highway district, in any town, they may, by
an agreement with the trustees of the village, permit an equitable
use of the machine to such separate village district.
§ 9. Additional tax.--Whenever the commissioners of highways
of any town shall determine, that the sum of five hundred dollars
will be insufficient to pay the expenses actually necessary for the im-
provement of highways and bridges, they may cause a vote to be
taken by ballot at any town-meeting, to be duly called, authorizing
such additional sum to be raised as they may deem necessary for
such purpose, not exceeding one-third of one per centum upon the
taxable property of the town, as shown by the last assessment-roll
thereof.
§ 10. Extraordinary repairs of highways or bridges.—If
any highway or bridge shall at any time be damaged or destroyed
by the elements or otherwise, the commissioner of highways of the
town in which such highway or bridge may be situated, may, with
the consent of the town board, cause the same to be immediately
repaired or rebuilt, although the expenditure of money required may
exceed the sum raised, or authorized to be raised, for such purposes
as hereinbefore provided; and the commissioners of highways shall
present the proper vouchers for the expenses thereof, to the town
board, at their 11ext annual meeting, and the same shall be audited
by them and collected in the same manner as amounts voted at town.
meetings.
§ 11. Auditing expense thereof—The town board may be con-
vened in special sessions by the Supervisor, or in his absence, by the
town clerk, upon the written request of any commissioners of high-
ways, and the bills and expenses incurred in the erection or repairs
of any such highways or bridges, may then be presented to, and
audited by the town board; and the supervisor and town clerk shall
issue a certificate, to be subscribed by them, setting forth the amount
so audited and allowed, and in whose favor, and the nature of the
work done and material furnished, and such certificate shall bear
interest from its date, and the amount thereof, with interest, shall be
levied and collected in the same manner as other town expenses.
§ 12. Accounts, how made out.—No account for services ren-
dered, or material furnished according to the provisions of this
chapter, shall be allowed by such board, unless the same shall be
verified in the same manner as town accounts are required by law to
be verified, nor unless the commissioners of highways shall certify
8 HIGHWAY MANUAL OF NEW YORK.
that the service has been actually performed, and the material was
actually furnished, and that the same was so performed or furnished
by the request of such commissioners; and the town board may
require and take such other proof as they may deem proper, to estab-
lish any claim for such labor and material, and the value thereof.
§ 13. Unsafe toll-bridge.—Whenever complaint in writing, 3n.
oath, shall be made to the commissioners of highways of any town in
which shall be, in whole or in part, any toll-bridge belonging to any
person or corporation, representing that such toll-bridge has from
any cause become, and is unsafe for the public use, such commis-
stoners of highways shall forthwith make a careful and thorough
examination of such toll-bridge, and if upon the examination
thereof, they shall be of the opinion that the same has from any
cause become dangerous or unsafe for public use, they shaſl there
upon give immediate notice to the owners of such toll-bridge, or to
any agent of such owners, acting as such agent, in respect to such
bridge, that they have on complaint made, carefully and thoroughly ex-
amined the bridge, and found it to be unsafe forthe public use. Such
owners shall thereupon immediately commence repairing the same,
and cause such repairs to be made within one week from the day of
such notice given, or such reasonable time thereafter as may be
necessary to thoroughly repair the bridge, so as to make it in all re-
spects, safe and convenient for public use; and for neglect to take
prompt and effective measures so to repair the bridge, its owners
shall forfeit twenty-five dollars; and shall not demand or receive any
toll for using the bridge, until the same shall be fully repaired; and
the commissioners of highways shall cause such repairs to be made,
and the owners of the bridge shall be liable for the expense thereof,
and for the services of the commissioners at two dollars per day;
and upon the neglect or refusal to pay the same upon presentation
of an account thereof, the commissioners of highways may recover
the same by action, in the name of the town.
§ 14. Water pipes in highways.—The commissioners of high-
ways may, upon written application of any resident of their town,
grant written permission to lay and maintain water pipes and hy-
drants under ground, within the portion therein described, of any
highway within the town, but not under the traveled part of the
highway, except across the same, for the purpose of supplying
premises with water, upon condition that such pipes and hydrants
shall be so laid as not to interrupt or interfere with public travel
upon the highway; and the applicant shall replace all earth removed,
HIGHw AY MANUAL OF NEW YORK. 9
and leave the highway in all respects in as good condition as before
the laying of such pipes.
§ 15. Actions for injuries to highways.-The commissioners of
highways may bring an action, in the name of the town, against any
person or corporation, to sustain the rights of the public in and to
any highway in the town, and to enforce the performance of any
duty enjoined upon any person or corporation in relation thereto,
and to recover any damages sustained or suffered or expenses in-
curred by such town, in consequence of any act or omission of any
such person or corporation, in violation of any law or contract in re-
lation to such highway.
$16. Liability of towns for defective highways.-Every town
shall be liable for all damages to person or property, sustained by
reason of any defect in its highways or bridges, existing because of
the neglect of any commissioner of highways of such town. No
action shall be maintained against any town to recover such dam-
ages, unless a verified statement of the cause of action shall have
been presented to the supervisor of the town, within six months
after the cause of action accrued; and no such action shall be com-
menced until fifteen days after the service of such statement.
§ 17. Action by town against commissioners.-If a judgment
shall be recovered against a town for damages to person or property,
sustained by reason of any defect in its highways, or bridges, exist-
ing because of the neglect of any commissioner of highways, such
commissioner shall be liable to the town for the amount of the judg-
ment, and interest thereon; but such judgment shall not be evi-
dence of the negligence of the commissioners in the action against
him.
§ 18. Audit of damages without action.—The town board of
any town may audit as a town charge, in the same manner as other
town charges are audited, any one claim not exceeding five hundred
dollars, for damages to person or property, heretofore or hereafter
sustained by reason of defective highway, or bridges in the town, if
in their judgment it be for the interest of the town so to do; but no
claim shall be so audited, unless it shall have been presented to the
supervisor of the town, within six months after it accrued, nor if an
action thereon shall be barred by the statute of limitations. The
town board may also audit any unpaid judgment heretofore or here-
after recovered against a commissioner of highways for any such
damages, if such town board shall be satisfied that he acted in good
faith, and the defect causing such damage did not exist because of
10 HIGHWAY MANUAL OF NEw York.
the negligence or misconduct of the commissioner, against whom
such judgment shall have been recovered,
§ 19. Reports of commissioners.-The commissioners of high-
ways of each town shall make to the town board, at its first meeting
in each year, a Written report stating,
1. The labor assessed and performed,
2. The sum received by them for penalties, commutations and
all other sources, and an itemized account of all moneys paid out
during the year, with receipts in full by the respective parties to
whom such money was paid;
3. The improvements which have been made on the highways
and bridges, during the year immediately preceding such report, and
the state of such highways and bridges; they shall also make at the
second meeting of Said board in each year, a statement of the im-
provements necessary to be made on such highways and bridges, and
an estimate of the probable expense thereof, beyond what the labor
to be assessed in that year will accomplish; a duplicate of which
shall be delivered by the commissioners to the supervisor of the
town, who shall present such duplicate statement to the board of
supervisors, who shall cause the amount so estimated, not exceeding
five hundred dollars in any one year, to be assessed, levied and col-
lected, in such town, in the same manner as other town charges.
§ 20. General duties of overseers.-Each overseer of highways
in every town, shall
1. Repair and keep in order the highways within his district.
2. Warn all persons and corporations assessed to work on the high-
ways in his district, to come and work thereon.
3. Cause the noxious weeds within the bounds of the highway
within his district, to be cut down or destroyed twice in each year,
once before the first day of July, and again before the first day of
September; and the requisite labor therefor shall be considered high-
way work.
4. Collect all fines and commutation money, and execute all lawful
orders of the commissioners.
5. Cause all loose stones lying on the beaten track of every high-
way within his district, to be removed once in every month, from
the first day of April until the first day of December.
6. Cause the monuments erected or to be erected, as the bounda-
ries of highways, to be kept up and renewed, so that the extent of
such highway boundaries may be publicly known.
§ 21. Opening obstructed highways, Whenever the labor in
HIGHw AY MANUAL OF NEW YORK. 11
any district has been worked out, commuted for, or returned to the
supervisor, and the highways are obstructed by Snow, or otherwise,
and notice has been given to the overseer, in writing, by any two or
more inhabitants of the town, liable to payment of highway tax, re-
questing the removal of such obstruction, the overseer of highways
in such district, shall immediately call upon all persons and corpora-
tions liable to highway tax therein, to assist in removing such ob-
structions; and such labor, so called for by the overseer, shall be
assessed upon those liable to perform the same, in proportion to their
original assessments. And all persons so called out and failing to
appear at the place designated by the overseer, or to commute at a
dollar a day, within twenty-four hours after due notice, shall be
liable to a fine at the rate of one dollar and fifty cents a day, for each
day’s labor they may be required to perform, which fine shall be
collectible by the overseer, as such, by action in justice’s court, and
shall be applied to the purposes specified in this section. The over-
seer shall be liable to a penalty of five dollars per day, for every day
he neglects, without good and sufficient reasons, to have such high-
way opened without delay after receiving such written notice, the
penalty to be collected in justice's court, by the person first suing
for the same, and the penalty shall be paid over to the commissioners
of highways, for the use of the town.
§ 22. Penalties against overseers.—Every overseer of high-
ways who shall refuse or neglect,
1. To warn the persons and corporations assessed to work on the
highways, when he shall have been required so to do, by the com-
missioners or either of them.
2. To collect the moneys that may arise from fines or commuta-
tions.
3. To perform any of the duties required by this chapter, or
which may be enjoined on him by the commissioners of highways
of his town, and for the omission of which no other penalty is pro-
vided, shall for every such refusal or neglect, forfeit the sum of ten
dollars.
§ 23. Penalties, how collected.—The commissioners of highways
shall prosecute, in the name of the town, every overseer of highways,
for any penalties known to the commissioners to have been incurred
by the overseer. They shall also upon the complaint of any resident
of the town, that any such penalty has been incurred, prosecute such
overseer therefor, if satisfied that the complaint is well founded.
The costs and expenses incurred by the commissioners in good faith,
12 HIGHw AY MANUAL OF NEW YORK.
in such proceedings, shall be a town charge, to be audited by the
town board. If the commissioners refuse or neglect to prosecute
for any such penalty, for thirty days after such complaint shall have
been made, the complainant may prosecute therefor in the name of
the town, upon indemnifying the town for the costs and expenses of
such prosecution, in such manner as the Supervisor may approve.
If the commissioner shall neglect or refuse to prosecute for any such
penalty, knowing that the same has been incurred, he shall beliable
to a penalty of ten dollars for every such neglect or refusal, to be
recovered by action, in the name of the town, brought by the super-
visor, or by any taxpayer of the town who may indemnify the town,
for the costs and expenses of the action, in such manner as the
supervisor may approve.
§ 24. Compensation of overseers.-If any overseer shall be
employed more days in executing the several duties enjoined upon
him by this chapter, than he is assessed to work on the highways, he
shall be paid for the excess, at the rate of twelve and a half cents
per hour for each day, and be allowed to retain the same out of the
money which may come into his hands under this chapter; but he
shall not be permitted to commute for the days he is assessed.
ARTICLE II.
ASSESSMENT FOR ELIGHWAY LABOR,
SECTION 30. Meetings of commissioners.
31. Lists of inhabitants.
32. Non-resident lands.
33. Assessments of highway labor, how made.
34. Copies of lists delivered to overseers.
35. Names omitted.
36. Appeals by non-residents.
37. Credit on private roads.
38. Certain assessments to be separate.
39. Tenant to deduct assessment.
40. Reassessment in case of neglect.
41. Omissions of assessors corrected. ,
42. New assessments by overseers.
43. Sidewalks and trees.
44. Abatement of tax for shade trees.
45. Sidewalk tax anticipated.
46. Certificate of anticipation.
47. Transfer of certificate.
48. Abatement of tax for watering trough.
49. System of taxation defined.
50. Town may change its system.
HIGHw AY MANUAL OF NEw York. 13
SECTION 51. Wote thereon.
52. When change to take effect.
53. Annual tax thereunder.
SECTION 30. Meetings of commissioners.—The commission-
ers of highways of each town shall meet within eighteen days after
the annual town-meeting, at the town clerk's office, on such day as
they shall agree upon, and afterwards at such other times and places
as they shall think proper.
§ 31. Lists of inhabitants.—Each of the overseers of highways
shall deliver to the clerk of the town, within sixteen days after his
appointment, a list subscribed by him, of the names of all the inhabit-
ants in his highway district, who are liable to work on the high-
ways; and the town clerk shall deliver such lists to the commissioners
of highways.
§ 32. Non-resident lands.-The commissioners of highways in
each town, before making the assessment of highway labor, shall
make out a list and statement, of the contents of all unoccupied lots,
pieces or parcels of land within the town, owned by non-residents;
every lot so designated, shall be described in the same manner as is
required from assessors, and its value shall be set down opposite to
the description; such value shall be the same as was affixed to the
lot in the last assessment-roll of the town ; and if such lot was not
separately valued in such roll, then in proportion to the valuation
which shall have been affixed to the whole tract, of which such lot
shall be a part.
§ 33. Assessments of highway labor, how made.—The com-
missioners of highways shall, at their first or some subsequent meet-
ing, ascertain, assess and apportion the highway labor to be per-
formed in their town, in the then ensuing year, as follows:
1. The whole number of days work to be assessed in each year,
shall be ascertained, and shall be at least three times the number of
taxable inhabitants in the town.
2. Every male inhabitant being above the age of twenty-one years
(excepting all honorably discharged soldiers and sailors who lost an
arm or leg in the service of the United States, during the late war,
or who are unable to perform manual labor by reason of injuries re-
ceived, or disabilities incurred in such service, persons seventy years
of age, clergymen and priests of every denomination, paupers, idiots
and lunatics), shall be assessed at least one day.
3. The residue of such days work, shall be apportioned and as-
sessed upon the estate, real and personal, of every inhabitant of the
14 HIGHWAY MANUAL OF NEW York.
town, including corporations liable to taxation therein, as the same
shall appear by the last assessment-roll of the town, and upon each
tract or parcel of land owned by non-residents of the town contained
in the list made by the commissioners, excepting such as are occupied
by an inhabitant of the town, which shall be assessed to the occupant.
The assessment of labor for personal property, must be in the dis-
trict in which the owner resides, and real property in the district
where it is situated, except that the assessment of labor upon the
property of corporations, may be in any district or districts of the
town, and such labor may be worked out or commuted for, as if the
corporation were an inhabitant of the district; but the real property
within an incorporated village or city, exempted from the jurisdic-
tion of the commissioners of highways of the town, and personal
property of an inhabitant thereof, shall not be assessed for highway
labor by the commissioners of highways of the town. Whenever the
assessors of any town shall have omitted to assess any inhabitant,
corporation or property therein, the commissioners of highways shall
assess the same, and apportion the highway labor as above provided.
4. The commissioners shall affix to the name of each person named
in the lists furnished by the overseers, and of assessable corporations,
and to the description of each tract or parcel of land contained in
the list prepared by them of non-resident lands, the number of days
which such person or tract shall be assessed for highway labor, as
herein directed, and the commissioners shall subscribe such lists, and
file them with the town clerk.
5. If the commissioners of highways shall neglect for one year,
after any highway shall have been laid out, and title thereto acquired,
to open or work the same, or any part thereof, and any inhabitant or
corporation of the town, in or through which the highway runs, shall
give ten days notice to the commissioners of the town, that they de-
sire to apply the whole or any part of their highway labor to the
working of such highway, the commissioners shall assign such inhab-
itants and corporations to such highway district, direct the highway
labor for which they are annually assessed to be applied to the same,
and cause the same to be worked and put in good order for vehicles
and travelers within one year, under the direction of any such in-
habitants whom such commissioners may appoint as an overseer of
the labor so to be applied to such highway; and when the number
of days labor assessed in the current year to such inhabitants, as the
annual highway tax, is not sufficient to put such highway in good
order, the inhabitants and corporations may anticipate the whole or
HIGHwAY MANUAL OF NEw York. 15
any part of the highway labor assessed, and to be assessed against
them, for a period not exceeding three years, but from no one of the
districts of the town shall more than one-half of its annual labor be
taxed and applied to any highway not embraced in such district.
§ 34. Copies of list delivered to overseers.—The commission-
ers of highways shall direct the clerk of the town to make copies of
such lists, and shall subscribe such copies, after which they shall
cause the several copies to be delivered to the respective overseers of
highways of the several districts in which the highway labor is
assessed, and the acceptance of the list by any overseer to whom the
same may be delivered, shall be deemed conclusive evidence of his
acceptance of the office of overseer.
§ 35. Names omitted.—The names of persons or corporations
omitted from any such list, and of new inhabitants, shall from time
to time be added to the several lists, and they shall be assessed by
the overseers in proportion to their real and personal estate to work
on the highways as others assessed by the commissioners on such
lists, subject to an appeal to the commissioners of highways.
§ 36. Appeals by non-residents.--Whenever any non-resident
owner of unoccupied lands shall conceive himself aggrieved by any
assessment of any commissioner of highways, such owner, or his
agent, may, within thirty days after such assessment, appeal to the
county judge of the county in which such land is situated, who shall,
within twenty days thereafter, hear and decide such appeal, the
owner or agent giving notice to the commissioners of highways of
the time of the hearing before the judge, and his decision thereupon
shall be final and conclusive.
§ 37. Credit on private roads.- The commissioners of high-
ways of each town shall credit to such persons as live on private
roads and work the same, so much on account of their assessments as
the commissioners may deem necessary to work such private road, or
shall annex the private roads to some of the highway districts.
§ 38. Certain assessments to be separate.— Whenever the
commissioners of highways shall assess the occupant, for any land
not owned by such occupant, they shall distinguish in their assess-
ment lists, the amount charged upon such land, from the personal
tax, if any, of the occupant thereof; but when any such land shall
be assessed in the name of the occupant, the owner thereof shall not
be assessed during the same year to work on the highways, on ac-
count of the same land.
§ 39. Tenant to deduct assessment.—Whenever any tenant of
16 HIGHWAY MANUAL of NEw York.
any land for a less term than twenty-five years, shall be assessed to
work on the highways for such land, and shall actually perform such
work, or commute therefor, he shall be entitled to a deduction from
the rent due, or to become due from him for such land, equal to the
full amount of such assessment, estimating the same at the rate of
one dollar per day, unless otherwise provided for by agreement be-
tween the tenant and his landlord. th
$ 40. Reassessment in case of neglect—If it shall appear
from the annual return of any overseer of highways, that any person
or corporation who was assessed to work on the highways (other than
non-residents), has neglected to work the whole number of days
assessed, and has not commuted for, or otherwise satisfied such defi-
ciency, the commissioners of highways shall reassess the deficiency
to the person so delinquent, at the next assessment for work for
highway purposes, and add to it his annual assessment; such reas-
sessment shall not exonerate any overseer of highways from any
penalty which he may have incurred under the provisions of this
chapter.
§ 41. Omissions of assessors corrected.—Whenever the as-
sessors of any town shall have omitted to assess any inhabitant or
property in their town, the commissioners of highways shall assess
the persons and property so omitted, and shall apportion highway
labor upon such persons or property, in the same manner as if they
had been duly assessed upon the last assessment-roll.
§ 42. New assessments by overseers.--When the quantity of
labor assessed on the inhabitants of any district by the commis-
sioners of highways, shall be deemed insufficient by the overseer of
the district to keep the highways therein in repair, such overseer
shall make another assessment on the actual residents of the district,
in the same proportion, as near as may be, and not exceeding one-
third of the number of days assessed in the same year by the com-
missioners, on the inhabitants of the district; and the labor so as-
sessed by an overseer, shall be performed or commuted for in like
manner, as if the same had been assessed by commissioners of high-
ways.
§ 43. Sidewalks and trees.—The commissioners of highways
may, by an order in writing duly certified by a majority of them,
authorize the owners of property adjoining the highways, at their
own expense, to locate and plant trees, and locate and construct side-
walks along the highways in conformity with the topography thereof,
which order, with a map or diagram showing the location of the
Highway Mastal or NEW YORK. 17
sidewalk and tree planting, certified by the commissioners, shall be
filed in the office of the clerk of the town where the highway is
located, within ten days after the making of the order.
*(R. S., p. 1400; post, p. 917)*
§ 44. Abatement of tax for shade trees.—Any inhabitant liable
to highway tax, who shall hereafter, pursuant to such an order,
transplant by the side of the highway adjoining his premises, any
forest shade trees, fruit trees, or any nut bearing trees, suitable for
shade trees, shall be allowed by the overseers of highways, or other
officer having charge of the highway, in abatement of his highway
tax, one dollar for every four trees set out; but all trees must have
been set out the year previous to such allowance, and be living and
well protected from animals at the time of the allowance, and not
further than eight feet from the outside line of any highway three
rods wide, and not more than one additional foot further therefrom,
for each additional rod in width of highway, and not less than sev-
enty feet apart, on the same side of the highway, if elms, or fifty
feet, if other trees; trees transplanted by the side of the highway,
in place of trees which have died, shall be allowed for in the same
manner. Such abatement of highway tax to any person, shall not
exceed one-quarter of his annual highway tax in any one year; but
such abatement shall be allowed by the overseers of highways, or
other officers having charge of the highway, annually, until it shall
have equalled the whole number of trees set out, at the rate herein
specified.
§ 45. Sidewalk tax anticipated.—The commissioners of high-
ways of any town, may, upon the written application of a majority
of the inhabitants in any highway district, subject to assessment for
highway labor therein, authorize not more than one-quarter of the
highway labor of the district, or of the commutation money re-
ceived therefor, to be expended under the direction of the overseer
of highways of the district, in the construction, repairs and improve-
ment of any sidewalks within the limits of the district, and may by
writing signed by them, filed with the town clerk, authorize not
more than one-fourth of the highway labor of the district, to be
anticipated for not more than three years, for constructing, improv-
ing or repairing any such sidewalks; and thereupon any person or
corporation, assessed for highway labor in the district, may, for such
purpose, anticipate his or its assessment for highway labor for the
term prescribed by the commissioners, and may perform such labor,
$ * So in the original.
18 HIGHWAY MANUAL OF NEw YoFK.
under the direction of the overseer within such time, or commute
therefor.
§ 46. Certificate of anticipation.— The overseer shall give to
such person or corporation, upon the performance of such labor or
commutation therefor, a certificate signed by him, showing the num-
ber of days labor so anticipated and worked, or commuted for by
such person or corporation; and in each succeeding year, upon pre-
sentation of such certificate, the person or corporation shall be
credited and allowed by the overseer of highways, with the per-
formance of the number of days labor assessed for such year, until
the credit shall equal the number of days stated in the certificate to
have been anticipated, and shall indorse thereon a statement signed
by him, showing the credit and allowance.
§ 47. Transfer of certificate.—Such certificate may be trans-
ferred to any grantee, upon a voluntary grant of the real property
upon which such highway labor is assessable, and if such real prop-
erty is transferred otherwise than by voluntary grant, it shall be
deemed to have been transferred to the person succeeding thereto,
and in the hands of any such transferee, it shall have the same effect
as when held by the original owner.
§ 48. Abatement of tax for watering trough.--The commis-
sioners of highways shall annually abate three dollars from the high-
way tax of any inhabitant of a highway district, who shall construct
on his own land therein, and keep in repair a watering trough beside
the public highway, well supplied with fresh water, the surface of
which shall be two or more feet above the level of the ground, and
easily accessible for horses with vehicles; but the number of such
watering troughs in the district, and their location, shall be designated
by the commissioners.
§ 49. System of taxation defined.—The system of taxation for
working and repairing highways, as hereinbefore provided, shall be
known as “The Labor System of Taxation,” and the system herein-
after provided, shall be known as “The Money System of Taxa-
tion.” -
§ 50. Town may change its system.—Any town may change
its system of taxation for working and repairing its highways, by
complying with the following provisions relating thereto.
§ 51. Vote thereon.—Upon the written request of twenty-five
taxpayers of any town, the electors thereof may, at each annual
town-meeting, vote by ballot upon the question of changing the sys-
tem of taxation for working the highways; but no person residing
HIGHway MANUAL OF NEW YORK. 19
in an incorporated village or city, exempted from the jurisdiction
of commissioners of highways of the town, shall sign such request;
or Vote upon such question.
§ 52. When change to take effect.—When a town shall have
voted to change the system of working and repairing the highways,
as herein provided, such change shall not take effect until the next
annual meeting of the board of supervisors, after the town-meeting
at which it was decided to make the change; and until such annual
meeting of the board of supervisors the former system of repairing
highways shall remain in force in such town.
§ 53. Annual tax thereunder.—Any town voting in
favor of the money system, shall annually raise by tax,
to be levied and collected the same as other town
taxes, for the repair of the highways, an annual sum of money,
which shall be equal to at least one-half the value at the commu-
tation rates, of the highway labor which should be assessable under
the labor system; but in any town in which there may be an incor-
porated village, which forms a separate road district, and wherein
the roads and streets are maintained at the expense of such vil-
lage, all property within such village shall be exempt from the levy
and collection of such tax for the repair of highways of such
town; and the assessors of such town are hereby required to indi-
cate on the assessment-roll the property included in such incor-
porated village, in a column separate from that containing a list
of the property in the town not included in such village; and shall
also place on the assessment-roll the names of all persons liable to
poll-tax who are not residents of such village, and the board of
supervisors are directed to levy a tax of one dollar on each per-
son liable to poll-tax as thus indicated; but this act shall not
apply to assessments made for damages and charges for laying
out or altering any road, or for erecting or repairing any bridge
in such town. The amount of such tax shall be determined by the
commissioners of highways and the town board, who shall certify
the same to the board of supervisors, the same as any other town
charge. (As am. by L. 1893, ch. 412.)
§ 54. The board of supervisors of any county may, by a con-
curring vote of at least a majority of the members thereof, by
20 HIGHwAY MANUAL OF NEw YoFK.
resolution, adopt the county road system, and shall, as soon as
practicable after the adoption of such resolution, cause to be desig-
nated as county roads such portions of the public highways in such
county not within an incorporated village or city as they shall
deem advisable; and shall cause such designation and a map of
such county roads to be filed in the clerk's office of such county.
The roads so designated shall, as far as practicable, be leading
market roads in such county. (As am. by L. 1893, ch. 333.)
§ 55. There shall be a county engineer in every such county,
who shall be appointed by the board of supervisors thereof, and
be removable at its pleasure. The term of office of each county
engineer shall be three years, unless sooner removed, and his sal-
ary shall be fixed by the board of supervisors and be a county
charge. (As am. by L. 1893, ch. 333.)
$ 56. The expense of maintaining the county roads of each
county shall be a county charge. The amount necessary to repair
and maintain the county roads in each year shall be appropriated
annually by the board of supervisors. The board of supervisors
may designate the roads upon which the money appropriated each
year for the repairing and maintenance of county roads shall be
expended for the ensuing year; and the county engineer shall have
the supervision of such expenditure. The board of supervisors
may designate the portion of the annual appropriation which shall
be expended upon any portion of the county roads, and shall from
year to year make such apportionment, so far as practicable, in
such manner that the amount expended in each town shall be pro-
portionate to the equalized valuation of the real property of such
town. (As am. by L. 1893, ch. 333.)
§ 57. The board of supervisors of such county may borrow money
from time to time for the construction, maintenance and repair of
the county roads in such county, and may issue the bonds or other
evidences of indebtedness of the county therefor; but such bonds
or other evidences of indebtedness shall not bear a rate of interest
exceeding five per centum per annum, and shall not be for a longer
term than twenty years, and shall not be sold for less than par.
(As am. by L. 1893, ch. 333.)
HIGHWAY MANUAL OF NEW YORK. 21
§ 58. The county roads in any county shall be exclusively under
the jurisdiction of the board of supervisors and the county engineer
of the county, and exempt from the jurisdiction of the highway
officers of the town. The system of taxation for Working and
repairing the highways, other than the county roads in a town in
a county in which the county road system is adopted, shall be the
money system of taxation. (As am. by L. 1893, ch, 333.)
ARTICLE III.
THE DUTIES OF OVERSEERS OF HIGHWAYS, AND THE PERFORMANCE OF
% HIGHWAY LABOR.
SECTION 60. Notice to work.
61. Notice to non-residents.
62. Commutation.
63. Teams and implements.
64. Substitutes.
65. Penalties for neglect to work or commute.
66. Assessment for unperformed labor.
67. Penalty for refusal of overseer to provide list.
68. Collection of arrearages for unperformed labor.
69. Annual return of overseers.
70. Noxious weeds in highway.
71. Overseers to notify occupant to remove weeds.
72. Abatement of tax for removal of fence.
73. Abatement of tax for street lamps.
74. Rebate of tax for using wagon tires of certain width.
Section 60. Notice to work.-Every overseer of highways shall
give at least twenty-four hours notice to all residents
of his district, and corporations assessed to work upon
the highways therein, of the time and place at which
they are to appear for that purpose, and with what teams
and implements, and that they will be allowed at the rate
of one day for every eight hours of work on the highways, between
seven o’clock in the forenoon and six o'clock in the afternoon. The
notice to corporations shall be served personally on an agent
thereof residing in the town, if any, or if none, by filing the notice
in the office of the town clerk, at least five days before the labor
shall be required; and any number of days not exceeding fifty,
may be required to be performed by any such corporation in any
One day.
§ 61. Notice to non-residents.-Every overseer of highways
22 HIGHWAY MANUAL OF NEW YORK.
shall give at least five days' notice to every resident agent of every
non-resident land-holder, whose lands are assessed, of the number
of days such non-resident is assessed, and the time and place at
which the labor is to be performed. If the overseer can not ascer-
tain that such non-resident has an agent within the town, he shall
file a written notice in the office of the town clerk, at least twenty
days before the time appointed for performing such labor, contain-
ing the names of such non-residents, when known, and a descrip-
tion of the lands assessed, with the number of days labor assessed
on each tract, and the time and place at which the labor is to be
performed.
§ 62. Commutation.—Every person and corporation, shall work
the whole number of days for which he or it shall have been
assessed, except such days as shall be commuted for, at the rate
of one dollar per day, and such commutation money shall be paid
to the overseer of highways of the district in which the labor
shall be assessed, within at least twenty-four hours before the
time when the person or corporation is required to appear amd
work on the highway; but any corporation may pay its commuta-
tion money to the commissioners of highways of the town, who
shall pay the same to the overseers of the districts respectively,
in which the labor commuted for was assessed.
§ 63. Teams and implements.--Every overseer of highways may
require a team, or a cart, wagon or plow, with a pair of horses or
oxen, and a man to manage them, from any person having the
same within his district, who shall have been assessed ºhree days
or more, and who shall not have commuted for his assessment;
and the person furnishing the same upon such requisition, shall
be entitled to a credit of three days for each day's service
there with.
§ 64. Substitutes.—Every person or corporation assessed to work
on the highways, and warned, who does does" not commute therefor,
may appear in person or by an able bodied man as a substitute. A
days labor shall be eight hours of work, and every person or corpora-
tion assessed more than One day shall be allowed to work ten hours
in each day.
*So in the original.
HIGHway MANUAL of NEw York. 23
§ 65. Penalties for neglect to work or commute.—Every per-
son or corporation assessed highway labor, who shall not commute,
and who shall not appear and work when duly notified, shall be
liable to a penalty of one dollar and fifty cents for every day he
shall so fail to appear and work; and for wholly omitting to com-
ply with any requisition to furnish a team, cart, wagon, implements
and man, he shall be liable to a penalty of five dollars for each
day's omission, and for omitting to furnish either a cart, wagon,
plow, team or man to manage the team, he shall be liable to a pen-
alty of one dollar and fifty cents for each day's omission; and if
any person shall after appearing, remain idle, or not work faith-
fully, or hinder others from working, he shall be liable to a penalty
at the rate of one dollar and fifty cents a day, for each hour. The
penalties herein imposed, may be recovered by action by the over-
seer of highways as such, and, when collected, shall be expended
or disposed of by the overseer in the same manner as commutation
moneys. The penalties, when recovered, shall be applied in satis-
faction of the labor assessed, for omission to perform which, the
penalties were respectively imposed. The overseer of highways
may excuse any omission to perform labor when required, if a satis-
factory reason shall be given therefor; but the acceptance of any
such excuse shall not exempt the person excused from commuting
for, or working the whole number of days for which he shall have
been assessed during the year.
§ 66. Assessment for unperformed labor. – Every overseer of
highways shall, on or before the first day of October in each year,
make out and deliver to the supervisor of his town, a list of all
persons and corporations who have not worked out, or commuted
for their highway assessment, with the number of days not worked
or commuted for by each, charging for each day in such a list, at
the rate of one dollar and fifty cents per day; and also a list of all
the lands of non-residents and persons unknown, which were
assessed on his warrant by the commissioners of highways, or added
by him, on which the labor assessed has not been performed or
commuted for, and the number of days labor unpaid by each,
charging for the same at the rate of one dollar and fifty cents per
day, which list shall be accompanied by the affidavit of the over,
24 HIGH way MANUAL OF NEw York.
Seer, that he has given the notice required, to appear and work,
and that the labor specified in the list returned, has not been per-
formed or commuted, and the supervisor shall present such lists to
the board of supervisors of his county.
§ 67. Penalty for refusal of overseer to provide list.— If any
overseer shall refuse or neglect to deliver such list to the supervisor
or to make the affidavits as herein directed, he shall for every such
offense, forfeit the sum of ten dollars, and the amount of taxes for
labor remaining unpaid, at the rate of one dollar for each day
assessed, to be recovered by the commissioners of highways, and
applied in making and improving the highways and bridges of the
delinquent overseer's district.
§ 68. Collection of arrearages for unperformed labor.—Each
board of supervisors, at its annual meeting in each year, shall cause
the amount of such arrearages for highway labor returned to them,
estimating each day's labor at one dollar and fifty cents a day, to
be levied and collected from the real or personal estate of the per-
son, corporation, or from the non-resident real estate, specified
in such list, to be collected by the collectors of the several towns,
in the same manner that other town taxes are collected, and shall
order the same, when collected, to be paid over to the commis-
sioners of highways of the town wherein the same is collected, to
be by them applied toward the construction, repairs and improve-
ment of the highways and bridges in the district in which the
labor was originally assessed.
§ 69. Annual return of overseers.—Every overseer of highways
shall, on the second Tuesday next preceding the time of holding
the annual town meeting in his town, within the year for which he
is elected or appointed, render to one of the commissioners of high-
ways of the town, an account in Writing, verified by his oath, and
containing:
1. The names of all persons assessed to work on the highways
in the district of which he is overseer. *
2. The names of all those who have actually worked on the
highways, with the number of days they have so worked.
3. The names of all those from whom penalties have been col-
lected, and the amounts thereof. *
HIGHWAY MANUAL of NEW YORK. 25
4. The names of all those who have commuted, and the manner
in which the moneys arising from penalties and commutations
have been expended by him.
5. A list of all persons whose names he has returned to the Super-
visor as having neglected or refused to work out their highway
assessments, with the number of days and the amount of tax SO
returned for each person, and a list of all the lands which he has
returned to the supervisor for non-payment of taxes, and the
amount of tax on each tract of land so returned; and he shall then
and there pay to the commissioners of highways all money remain-
ing in his hands unexpended, to be applied by them in making
and improving the highways and bridges of the town, in such
manner as they shall direct; and if he shall neglect or refuse to
render such account, or if, having rendered the same, he shall
refuse or neglect to pay any balance which then may be due from
him, he shall, for every such offense, forfeit the sum of ten dollars.
§ 70. Noxious weeds in highway.—Every person or corpora-
tion, owning or occupying, under a lease for one or more years, any
cultivated or inclosed lands, abutting upon any highway, shall
cause all noxious Weeds, briers, and brush growing upon such lands
within the bounds of the highway, to be cut or destroyed between
the fifteenth day of June and the first day of July, and between the
fifteenth day of August and the first day of September, in each
and every year; but boards of supervisors may fix a different period
or periods, for such cutting or destruction in their respective coun-
ties. No person shall place or cause to be placed, any noxious
weeds, or the seeds of such weeds, within the bounds of any public
highway. Any willful violation of this section, shall subject the
person or corporation So offending, to a penalty of ten dollars
for each offense.
§ 71. Overseers to notify occupants to remove weeds.- The
overseers of every highway district shall give written notice to any
occupant of the premises to cut all weeds, briers and brush grow-
ing within the bounds of the highway; if such occupant shall not
cut such weeds, briers and brush as so required within ten days
after receiving such notice, such overseer shall employ some one
4.
26 HIGHWAY MANUAL OF NEW YORK.
to do such work, and and” make a report under oath to the com-
missioners of highways, of the amount expended by him thereon,
and the ownership and occupancy of the several pareels of land
against which the labor was performed, on or before the first
day of November in each year; the commissioners of highways
shall certify these statements to the supervisor of the town, and
the Supervisor shall lay the same before the board of supervisors
at it next annual meeting, and such board shall include the
amounts included in such statements in the taxes assessed upon
the lands, upon or against which the labor was performed, the
same to be collected with the other taxes, and paid over upon
the Order of the Supervisor to the parties entitled thereto.
§ 72. Abatement of tax for removal of fence.—Any inhabit.
ant liable to a highway tax, Who shall remove from lands owned
or occupied by him, the fence along any public highway, for the
purpose of preventing the drifting of snow into such highway,
shall be allowed by the overseer of highways, in abatement of his
highway tax, the time actually expended in Iomoving such fence,
and in replacing the same, pursuant to the directions of the over-
seer of highways.
§ 73. Abatement of tax for street lamps.-- Any person or
corporation owning or holding real estate, or other property liable
to highway tax, except in the county of Kings, other than in cities
and incorporated villages, who shall, with the consent of the over.
seers of highways in charge of the district in which such property
is assessed, and in such places as he may direct, erect a street
lamp, and cause the same to be properly attended to and kept
burning during such hours of each night as the overseer of high-
ways may direct, shall be allowed by the overseer of highways, in
abatement of such highway tax, six dollars annually, or such por-
tion of six dollars as the annual highway taxes upon such real
estate or other property may be.
§ 74. Rebate of tax for using wagon tires of certain width.-
Every person who, during the year ending June first, eighteen
*So in the original.
HIGHway Manual of New York. 27
- hundred and ninety-three and each succeeding year thereafter,
uses on the public highways of this state only wagons or vehicles
with wheels upon which two or more horses are used the tire of
which shall be not less than three inches in width, shall receive a
rebate of one-half of his assessed highway tax or each such year,
not exceeding however in any one year, the sum of four dollars or
four days’ labor. The right to such rebate shall not be affected
by the use upon the public highways of buggies, carriages or
platform spring wagons carrying a weight not exceeding one
thousand pounds. Upon making an affidavit showing that he
has complied with the provisions of this section during any such
year, he shall be credited by the overseer of highways of the road
district in which he resides or any road district where he is
assessed with such rebate. Such affidavit may be taken before
any overseer of highways who is hereby authorized to administer
such oath. (As amended by L. 1893, ch. 468.)
ARTICLE IV.
LAYING OUT, ALTERING AND DISCONTINUING HIGHWAYS, AND LAYING
OUT PRIVATE ROADS.
SECTION 80. Highways by dedication.
81. Survey.
82. Application.
83. Application for commissioners.
84. Appointment of commissioners, and their duties.
85. Notice of meeting.
86. Decision of commissioners in favor of application.
87. Damage in certain cases, how estimated.
88. Decision of commissioners denying application.
89. Motion to confirm, vacate or modify.
90. Limitation upon laying out highways.
'91. Laying out highways through burying grounds.
92. Costs, by whom paid. -
93. Damages assessed, and costs to be audited.
94. When officers of different towns disagree about highway.
95. Difference about improvements.
96. Highways in two or more towns.
97. Laying out highway upon town line.
98. Final determination, how carried out.
99. Highways abandoned.
100. Highways by use.
28 HIGHway MANUAL OF NEW YORK,
“A
SECTION 101. Fences to be removed.
102. Penalty for falling trees.
103. Fallen trees to be removed.
104, Penalty for obstruction or encroachment.
105. How removed, and liability for not removing.
106. Private road.
107, Jury to determine necessity, and assess damages.
108. Copy application and notice delivered to applicant,
109. Copy and notice to be served.
110. List of jurors.
111. Names struck off.
112. Place of meeting.
113. Jury to determine and assess damages.
114. Their verdict.
115. Value of highway discontinued.
116. Papers to be recorded in town clerk's office.
117. Damages to be paid before opening the road.
118. Fees of officers.
119. Motion to confirm, vacate or modify.
120. Cests of new bearing.
121. For what purpose private road to be used.
122. Dighways or roads along division lines.
123. Adjournments.
§ 80. Highways by dedication.—Whenever land is dedicated
to a town for highway purposes therein, the commissioners of high-
ways of such town may, either with or without a written applica-
tion therefor, and without expense to the town, make an order lay-
ing out such highway, upon filing and recording in the town clerk's
office, with such order, a release of the land from the owner thereof.
Such commissioners of highways may also, upon written applica-
tion, and with the written consent of the town board, make an order
laying out or altering a highway in their town, upon filing and re.
cording in the town clerk’s office, with such application, consent and
order a release of all damages from the owners of lands taken or
affected thereby, when the consideration for such release, as agreed
upon between such commissioners and owners, shall not, in any one
case, from any one claimant, exceed one hundred dollars, and from
all claimants, five hundred dollars. An order of the commissioners,
as herein provided, shall be final.
§ 81. Survey.—Whenever the commissioners of highways shall
lay out any highway, either upon application to them or otherwise,
they shall cause a survey thereof to be made, and shall incorporate
the survey in an order to be signed by them, and to be filed and re-
corded in the office of the town clerk, who shall note the time of re-
cording the same.
HIGHwAY MANUAL OF NEW YORK. 29
§ 82. Application.—Any person or corporation assessable for
highway labor, may make written application to the commissioners
of highways of the town in which he or it shall reside, or is assess-
able, to alter or discontinue a highway, or to lay out a new high-
way.
§ 83. Application for commissioners.--Whenever the land is
not dedicated to the town for highway purposes, and not released as
herein provided, the applicant shall, within thirty days after pre-
senting the application to the commissioners of highways, by veri-
fied petition showing the applicant's right to so present the same,
and that such application has been in good faith presented, apply to
the county court of the county where such highway shall be, for
the appointment of three commissioners to determine upon the
necessity of such highway proposed to be laid out or altered, or to
the uselessness of the highway proposed to be discontinued, and to
assess the damages by reason of the laying out, opening, altering or
discontinuing of such highway.
§ 84. Appointment of commissioners and their duties.—
Upon the presentation of such petition, the county court shall ap-
point three disinterested freeholders, who shall not be named by
any person interested in the proceedings, who shall be residents of
the county, but not of the town wherein the highway is located, as
commissioners to determine the questions mentioned in the last sec-
tion. They shall take the constitutional oath of office, and appoint
a time and place at which they shall all meet to hear the commis-
sioners of highways of the town where such highway is situated,
and others interested therein. They shall personally examine the
highway described in the application, hear any reasons that may be
offered for or against the laying out, altering or discontinuing of the
highway, and assess all damages by reason thereof. They may ad-
journ the proceedings before them from time to time, issue subpoenas
and administer oaths in such proceedings, and they shall keep min-
utes of their proceedings, and shall reduce to writing all oral evi.
dence given before them upon the subject of the assessment of dam-
ages. They shall make duplicate certificates of their decision, and
shall file one in the town clerk's office of the town, and the other,
with such minutes and evidence, in the county clerk’s office of the
county in which the highway or proposed highway is located.
$ 85. Notice of meeting.—The applicant shall cause, at least
eight days previous, written or printed notice to be posted up in not
less than three public places in the town specifying, as near as may
30 HIGHw AY MANUAL OF NEW YORK.
be, the highway proposed to be laid out, altered or discontinued, the
tracts or parcels of land through which it runs, and the time and
place of the meeting of the commissioners appointed by the county court
to examine the highway as mentioned in the last section. Such no-
tice shall also, in like time, be personally served on the owner and
occupant of the land, if they reside in the town, or by leaving the
same at their residence with a person of mature age; if they do not
reside in the same town, or service can not be made, a copy of such
notice shall be mailed to such owner or occupant, if their post office
address is known to the applicant or ascertainable by him upon rea-
sonable inquiry.
$ 86. Decision of commissioners in favor of application.— If
a majority of the commissioners appointed by the county court shall
determine that the highway or alteration applied for is necessary, or
that the highway proposed to be discontinued is useless, they shall
assess all damages which may be required to be assessed by reason
thereof and make duplicate certificates to that effect.
§ 87. Damages in certain cases, how estimated.—The owner
of lands within the bounds of a highway discontinued may inclose
the same and have the exclusive use thereof, and the benefits resulting
therefrom may be deducted in the assessment of damage caused by
the laying out of a highway through his other lands in place of the
discontinued highway.
§ 88. Decision of commissioners denying application.—If a
majority of the commissioners appointed by county court shall de-
termine that the proposed highway or alteration is not necessary, or
that the highway proposed to be discontinued is not useless, they
shall make duplicate certificates to that effect.
§ 89. Motion to confirm, vacate or modify.—Within thirty
days after the decision of the commissioners shall have been filed in
the town clerk's office any party interested in the proceeding may
apply to the court appointing the commissioners for an order con-
firming, vacating or modifying their decision, and such court may
confirm, vacate or modify such decision. If the decision be vacated
the court may order another hearing of the matter before the same
or other commissioners. If no such motion is made, the decision of
the commissioners shall be deemed final. Such motion shall be
brought on, upon the service of papers upon adverse parties in the
proceeding, according to the usual practice of the court in actions
and special proceedings pending therein; and the decision of the
county court shall be final, excepting that a new hearing may be
HIGH way MANUAL OF NEW YORK. 31
ordered as herein provided. If the final decision shall be adverse to
the applicant, no other application for laying out, altering or discon-
tinuing the same highway shall be made within two years.
§ 90. Limitations upon laying out highways.- No highways
shall be laid out less than three rods in width, northrough an chard
of the growth of four years or more, or any garden cultivated as
such for four years or more, or grape vineyard of one or more
years growth, and used in good faith for vineyard purposes, or build-
ings, or any fixtures or erections for the purposes of trade or manu-
factures, or any yard or inclosure necessary to the use and enjoy-
ment thereof, without the consent of the owner or owners thereof
unless so ordered by the county court of the county in whit the
proposed highway is situated ; such order shall be made on the cer-
tificate of the commissioners of highways of the town or towns in
which the proposed highway is situated, showing that the public
interest will be greatly promoted by the laying out and opening of
such highway, and that commissioners appointed by the court have
certified that it is necessary; a copy of the certificate, with eight
days notice of the time and place of the hearing before the county
court, shall be served on the owners of the land, or if they are not
residents of the county, upon the occupants; the county court upon
such certificates, and the proofs and other proceedings therein, may
order the highway to be laid out and opened, if it deems it necessar"
and proper. The commissioners of highways shall then present the
order of the county court, with the certificate and proofs upon which
it was granted, certified by such court to the general term of the
supreme court in the judicial department in which the land is situ-
ated, upon the usual notice of motion, served upon the owner or
occupant, or the attorney who appeared for them in the county
court. If such general term of the supreme court shall confirm the
order of the county court, the commissioners of highways shall then
lay out and open such highway as in other cases. The provisions of
this section shall not apply to vineyards planted, or to buildings,
fixtures, erections, yards or inclosures, made or placed on such land
after an application for the laying out and opening the highway shall
have been made.
§ 91. Laying out highways through burying-grounds.-No
private road or highway shall be laid out or constructed upon or
through any burying-ground, unless the remains therein contained
are first carefully removed, and properly reinterred in some other
burying ground, at the expense of the persons desiring such road or
32 PIIGHWAY MANUAL OF NEW YORK.
highway, and pursuant to an order of the county court of the county
in which the same is situated, obtained upon notice to such persons
as the court may direct.
§ 92. Costs, by whom paid.—In all cases of assessments of dam-
ages by commissioners appointed by the court, the costs thereof shall
be paid by the town except when reassessment of damages shall be
had on the application of the party for whom the damages were
assessed, and such damages shall not be increased on such reassess-
ment, the costs shall be paid by the party applying for the reassess-
ment; and when application shall be made by two or more persons
for the reassessment of damages, all persons who may be liable for
costs under this section, shall be liable in proportion to the amount
of damages respectively assessed to them by the first assessment, and
may be recovered by action in favor of any person entitled to the
same. Each commissioner appointed by the court, for each day
necessarily employed as such, shall be entitled to six dollars and his
necessary expenses.
§ 93. Damages assessed, and costs to be audited.—All dam-
ages to be agreed upon, or which may be finally assessed, and costs
against the town, as herein provided, shall be laid before the board
of supervisors, by the supervisor of the town, to be audited with the
charges of the commissioners, justices, surveyors, or other persons
or officers employed in making the assessment, and for whose ser-
vices the town shall be liable, and the amount shall be levied and
collected in the town in which the highway is situated, and the
money so collected shall be paid to the commissioners of highways
of such town, who shall pay to the owner the sum assessed to him,
and appropriate the residue to satisfy the charges aforesaid.
§ 94. When officers of different towns disagree about high-
way.—When the commissioners of highways of any town, or officers
of any village or city having the powers of commissioners of high-
ways, shall differ with the commissioners of highways of any other
town, or with the officers of such a village or city having the powers
of commissioners of highways in the same county, relating to the
laying out of a new highway or altering an old highway extending
into both towns, or a town and a village or city, or when commis-
sioners of highways of a town in one county, shall differ with the
commissioners of highways of a town, or the officers of a village or
city having the powers of commissioners of highways, in another
county, relating to the laying out of a new highway, or the altera-
tion of an old highway, which shall extend into both counties, the
HIGHw AY MANUAL of NEW YORK. 33
commissioners of highways of both towns, or the officers of the vil-
lage or city having such powers, shall meet on five days written
notice, specifying the time and place, within some one of such towns,
villages, or cities, given by either of such commissioners or officers
having powers of commissioners of highways, to make their de-
termination in writing, upon the subject of their differences. If
they can not agree, they or either of them may certify the fact of
their disagreement to the county court of the county, if the proposed
highway is all in one county, or if in different counties, or if the
county judge is disqualified or unable to act, to the supreme court;
such court shall thereupon appoint three commissioners, freeholders
of the county, not residents of the same town, village or city where
the highway is located; or if between two counties, then freeholders
of another county, who shall take the constitutional oath of office,
and upon due notice to all persons interested, view the proposed
highway, or proposed alteration of a highway, administer all neces-
sary oaths, and take such evidence as they shall deem proper, and
shall decide (subject to the approval of the court, as hereinafter pro-
vided) all questions that shall arise on the hearing, as to the laying
out or altering of snch highway, its location, width, grade and char-
acter of road-bed, or any point that may arise relating thereto; and
if they decide to open or alter such highway, they shall ascertain
and appraise the damages, if any, to the individual owners and
occupants of the land through which such new or altered highway is
proposed to pass, and shall report such evidence and decision to such
court, with their assessment of damages, if any, with all convenient
speed. On the coming in of such report, the court may, by order,
confirm, modify or set aside the report in whole or in part, and may
order a new appraisal by the same or other commissioners, and shall
decide all questions that may arise before it. And all orders and
decisions in the matter shall be filed in the county clerk's office of
each county where the highway is located, and shall be duly recorded
therein.
§ 95. Difference about improvements.- When the commis-
sioners of highways of a town, or the officers of a village or city hav-
ing the powers of commissioners of highways therein, shall desire to
make a new or altered highway extending beyond the bounds of such
town, village or city, a better highway than is usually made for a com-
mon highway, with a special grade or road-bed, drainage or improved
plan, and are willing to bear the whole or a part of the expense thereof
beyond such bounds, but can not agree in regard to the same, upon
34 HIGHw AY MANUAL OF NEW YORK.
written application of either of the commissioners or officers, and no-
tice to all parties interested, such courtshall make an equitable adjust-
ment of the matters, and may direct, that in consideration of the pay-
ment of such portion of the additional expense by the town, village
or city that desires the improved and better highway, as shall be equi-
table, its officers, contractors, servants and agents may go into such
town, village or city, and make the grade and road-bed, and do what-
ever may be necessary and proper for the completion of such better
highway, advancing the money to do it; the amount of damages to
each owner or occupant, shall be ascertained and determined by com-
missioners, who shall be appointed, and whose proceedings shall be
conducted in the manner provided by the last preceding section; and
upon the coming in of their report of damages, and of the expenses
paid, such court shall, on notice to all parties interested, direct that
the amount of damages assessed to each owner or occupant, if any,
and all such expenses be paid by each, any or all of such towns, vil-
lages or cities as shall be just and equitable, and the damages and ex-
penses assessed and allowed, as in this and the last preceding sections,
shall be paid and collected as if fixed by the commissioners of high-
ways of the towns, or the officers of such villages or cities having the
powers of such commissioners. Every commissioner appointed as
herein provided, shall be paid six dollars for each day actually and
necessarily employed in such service and necessary expenses.
§ 96. Highway in two or more towns.—When application is
made to lay out, alter or discontinue a highway located in two or more
towns, all notices or proceedings required to be served upon the com-
missioners of highways, shall be served upon the commissioners of
highways of each town; and the commisisoners appointed by the court,
shall determine the amount of damages to be paid by each town, and
when the towns are in different counties, the application for the ap-
pointment of commissioners shall be made to a special term of the
supreme court held in the district where the highway or some part of
it is located; and the same proceedings shall thereafter be had in the
supreme court of such district as are authorized by this chapter to be
had in the county court.
§ 97. Laying out highway upon town line.—An application
to lay out a highway upon the line between two or more towns, shall
be made to the commissioners of highways of each town, who shall
act together in the matter, and upon laying out any such highway,
they shall divide it into two or more highway districts, in such manner
that the labor and expense of opening, Working and keeping the same
HIGHw AY MANUAL of NEW YORK. 35
in repair through each of such districts, may be equal as near as may
be, and to allot an equal number of the districts to each of the towns;
each district shall be considered as wholly belonging to the town to
which it shall be allotted, for the purpose of opening and improving
the highway, and for keeping it in repair; and the commissioners of
highways shall cause the highway, and the partition and allotment
thereof to be recorded in the office of the town clerk, in each of their
respective towns.
$98. Final determination, how carried out.—The final deter-
mination of commissioners appointed by any court, relating to the
laying out, altering or discontinuing a highway, and all orders and
other papers filed or entered in the proceedings, or certified copies
thereof from the court where such determination, order and papers
are filed and entered, shall be forthwich filed and recorded in the town
clerk's office of the town where the highway is located ; and every
such decision shall be carried out by the commissioners of highways
of the town, the same as if they had made an order to that effect.
§ 99. Highways abandoned.—Every highway that shall not
have been opened and worked within six years from the time it
shall have been dedicated to the use of the public, or laid out, shall
cease to be a highway; but the period during which any action or
proceeding shall have been, or shall be pending in regard to any
such highway, shall form no part of such six years; and every high-
way that shall not have been traveled or used as a highway for six
years, shall cease to be a highway. The commissioners of highways
shall file, and cause to be recorded in the town clerk's office of the
town, written description, signed by them, of each highway so aban-
doned, and the same shall thereupon be discontinued.
§ 100. Highways by use.—All lands which shall have been used
by the public as a highway for the period of twenty years or more,
shall be a highway, with the same force and effect as if it had been
duly laid out and recorded as a highway, and the commissioners of
highways shall order the overseers of highways to open all such
highways to the width of at least two rods.
§ 101. Fences to be removed.—Whenever a highway shall have
been laid out through any inclosed, cultivated or improved lands, in
conformity to the provisions of this chapter, the commissioners of
highways shall give to the owner or occupant of the land through
which such highway shall have been laid, sixty days notice in writ-
ing to remove his fences; if such owner shall not remove his fences
36 HIGHw AY MANUAL OF NEW YORK.
within the sixty days, the commissioners shall cause them to be re-
moved, and shall direct the highway to be opened and worked.
§ 102. Penalty for falling trees.—If any person shall cut down
any tree on land not occupied by him, so that it shall fall into any
highway, river or stream, unless by the order and consent of the oc-
cupant, the person so offending shall forfeit to such occupant, the
sum of one dollar for every tree so fallen, and the like sum for every
day the same shall remain in the highway, river or stream.
§ 103. Fallen trees to be removed.—If any tree shall fall, or
be fallen by any person from any inclosed land into any highway,
any person may give notice to the occupant of the land from which
the tree shall have fallen, to remove the same within two days; if
such tree shall not be removed within that time, but shall continue
in the highway, the occupant of the land shall forfeit the sum of
fifty cents for every day thereafter, until the tree shall be removed.
§ 104. Penalty for obstruction or encroachment.—Whoever
shall obstruct or encroach upon any highway, or shall unlawfully
fill up or place any obstruction in any ditch for draining the water
from any highway, shall forfeit for every such offense the sum of
five dollars.
§ 105. How removed and liability for not removing.—The
commissioners of highways shall serve upon the owner or occupant of
lands adjoining that part of a highway within their town, in which
any obstruction or encroachment may exist, a notice specifying the
extent and location of such obstruction or encroachment, and directing
such owner or occupant to remove the same within a specified time,
not more than sixty days after the service of the notice. If such
owner or occupant shall neglect or refuse to remove such obstruction
or encroachment within such time, he shall forfeit to the town the
sum of twenty-five dollars; and the commissioners may remove
such obstructions or encroachments at the expense of the town,
which may be recovered by action, of such owner or occupant; or
the said commissioners may bring an action in any court of com-
petent jurisdiction, to compel such owner or occupant to remove
such obstruction or encroachment. Actions by commissioners of
highways, as in this section provided, shall be in the name of the
town.
§ 106. Private road.—An application for a private road shall be
made in writing to the commissioners of highways of the town in
which it is to be located, specifying its width and location, courses
HIGHway MANUAL of NEw York. 37
and distances, and the names of the owners and occupants of the
land through which it is proposed be laid out.
*(R. S., pp. 1379, 1383; post, pp. 882–893.)”
§ 107. Jury to determine necessity and assess damages.
—One or more of the commissioners to whom the application shall
be made, shall appoint as early a day as the convenience of the par-
ties interested will allow, when, at a place designated in the town, a
jury will be selected for the purpose of determining upon the ne-
cessity of such road, and to assess the damages by reason of the open-
ing thereof.
§ 108. Copy application and notice delivered to applicant.—
Such commissioners shall deliver to the applicant a copy of the ap-
plication to which shall be added a notice of the time and place ap-
pointed for the selection of the jury, addressed to the owners and
occupants of the land.
§ 109. Copy and notice to be served.—The applicant on re-
ceiving the copy and notice shall, on the same day, or the next day
thereafter, excluding Sunday and holidays, cause such copy and no-
tice to be served upon the persons to whom it is addressed, by de-
livering to each of them who reside in the same town a copy thereof,
or in case of his absence, by leaving the same at his residence, and
upon such as reside elsewhere, by depositing in the post-office a copy
thereof to each, properly inclosed in an envelope, addressed to them
respectively at their post-office address, and paying the postage
thereon, or, in case of infant owners, by like service upon their
parent or guardian.
§ 110. List of jurors.-At such time and place, on due proof of
the service of the notice, one or more of the commissioners shall
present a list of the names of eighteen resident freeholders of the
town, in no wise of kin to the applicant, owner or occupant, or
either of them, and not interested in such lands.
§ 111. Names struck off. —The owners or occupants of the land,
may strike from the list not more than six names, and the applicant a
like number; and of the number which remain, the six names
standing first upon the list shall be the jury.
§ 112. Place of meeting.—The commissioner or commissioners
present, shall then appoint some convenient time and place for the
jury to meet, and shall summon them accordingly.
§ 113. Jury to determine and assess damages.—At least one
commissioner and all the persons named and summoned on such
—ºn
* So in the original.
38 HIGHw AY MANUAL OF NEW YORK. .
jury, shall meet at the time and place appointed; but if one or more
of the six jurors shall not appear, the commissioner or commission-
ers present shall summon so many qualified to serve as such jurors
as will be sufficient to make the number present six, to forthwith
appear and act as such ; and when six shall have so appeared, they
shall constitute the jury, and shall be sworn well and truly to deter-
mine as to the necessity of the road, and to assess the damages by
reason of the opening thereof. ©
§ 114. Their verdict.—The jury shall view the premises, hear
the allegations of the parties, and such witnesses as they may pro-
duce, and if they shall determine that the proposed road is necessary,
they shall assess the damages to the person or persons through whose
land it is to pass, and deliver their verdict in writing to the com—
missioners.
§ 115. Value of highway discontinued.—If the necessity of
such private road has been occasioned by the alteration or discon-
tinuance of a public highway running through the lands belonging
to a person through whose lands the private road is proposed to be
opened, the jury shall take into consideration the value of the high-
way so discontinued, and the benefit resulting to the person by rea-
son of such discontinuance, and shall deduct the same from the dam-
ages assessed for the opening and laying out of such private road.
§ 116. Papers to be recorded in the town clerk's office.—
The commissioners shall annex to such verdict the application, and
their certificate that the road is laid out, and the same shall be filed
and recorded in the town clerk’s office.
§ 117. Damages to be paid before opening the road.—The
damages assessed by the jury shall be paid by the party for whose
benefit the road is laid out, before the road is opened or used ; but
if the jury shall certify that the necessity of such private road was
occasioned by the alteration or discontinuance of a public highway,
such damages shall be paid by the town, and refunded to the appli-
cant.
§ 118. Fees of officers.-Every juror, in proceedings for a pri-
vate road, shall be entitled to receive for his services one dollar and
fifty cents; and commissioners, of highways, their per diem compen-
sation, to be paid by the applicant.
§ 119. Motion to confirm, vacate or modify.—Within thirty
days after the decision of the jury shall have been filed in the town
clerk’s office, the owner or occupant may apply to the county court
of the county wherein such private road is situated, for an order
HIGHwAY MANUAL of NEw York. 39
confirming, vacating or modifying their decision; and such court
may confirm, vacate or modify such decision as it shall deem just
and legal. If the decision is vacated, the court may order another
hearing of the matter before another jury, and remit the proceed-
ing to the commissioners of highways of the same town for that pur-
pose. If no such motion is made, the decision of the jury shall be
deemed final. The motion shall be brought on, upon the service of
papers on the adverse party in the proceeding, according to the
usual practice of the court in actions and special proceedings pend-
ing therein, and the decision of the county court shall be final, ex-
cept that a new hearing may be had, as herein provided. If the
final decision shall be adverse to the applicant, no other application
for the same road shall be made within two years.
§ 120. Costs of new hearing.—If upon a new hearing, the dam-
ages assessed are increased, the applicant shall pay the costs and ex-
penses thereof, otherwise the owner shall pay the same.
§ 121. For what purpose private road to be used.—Every
such private road when so laid out, shall be for the use of such appli-
cant, his heirs and assigns; but not to be converted to any other use
or purpose than that of a road; nor shall the occupant or owner of
the land through which said road shall be laid out, be permitted to
use the same as a road, unless he shall have signified such intention
to the jury who assessed the damages for laying out such road, and
before such damages were assessed.
§ 122. Highways or roads along division lines.—Whenever
a highway or private road shall be laid along the division line be-
tween lands of two or more persons, and wholly upon one side of
the line, and the land upon both sides is cultivated or improved, the
persons owning or occupying the lands adjoining such highway or
road, shall be paid for building and maintaining such additional
fence as they may be required to build or maintain, by reason of the
laying out and opening such highway or road; which damages shall
be ascertained and determined in the same manner that other dam-
ages are ascertained and determined in the laving out of highways
or private roads.
§ 123. Adjournments.-If any accident shall prevent any of the
proceedings required by this chapter relating to the laying out, alter-
ing or discontinuing of a highway, or the laying out a private road,
to be done on the day assigned, the proceedings may be adjourned
to some other day, and the commissioner shall publicly announce
such adjournment
40 HIGHw AY MANUAL of NEW YORK.
ARTICLE V.
IBRIDGES.
SECTION "30. When town or county expense.
131. Additional county aid.
132. Statement of expenses,
133. Supervisors to levy tax.
134. Joint liability of towns, and their joint contracts.
135. Refusal to repair.
136. Proceedings in court.
137. Commissioners to institute proceedings.
138. Their duty.
139. Commissioners to report.
140. Appeals.
141. Power of court on appeal.
142. Refusal to repair bridge.
143. Penalty, and notice on bridge.
144. Offense.
145. Iron bridges.
SECTION 130. When town or county expense.—The towns of
this state, except as otherwise herein provided, shall be liable to pay
the expenses for the construction and repair of its public free
bridges, constructed over streams or other waters within their
bounds, and their just and equitable share of such expenses when so
constructed over streams or other waters upon their boundaries, ex-
cept between the counties of Westchester and New York; and when
such bridges are constructed over streams or other waters forming
the boundary line of towns, either in the same or adjoining counties,
such towns shall be jointly liable to pay such expenses, except that
when the whole expense in any one town, for any one year, for the
construction, care, maintenance, preservation and repair of its bridges,
shall exceed one-sixth of one per centum on the assessed valuation
of the taxable property of the town for that year, the county in
which such town is located, shall then pay not less than one-third
part of such excess. Each of the counties of this state shall also be
liable to pay for the construction, care, maintenance, preservation
and repair of public bridges, lawfully constructed over streams or
other waters forming its boundary line, not less than one-sixth part
of the expenses of such construction, care, maintenance, preserva-
tion and repair.
[$131. Repealed by the county law, L. 1892, chap. 686.]
§ 132. Statement of expenses.—The commissioners of high-
ways of every town in which the whole or any part of any free
HIGHw AY MANUAL of NEW YORK. 41.
bridge may be, shall make and deliver to the supervisor of the town,
on or before the first day of November in each year, a written state-
ment, verified by one of them, containing a description of such
bridge, the whole expense in items incurred by the town during the
year preceding for its construction or repair.
§ 133. Supervisors to levy tax-Every supervisor to whom
such statement is delivered shall present the same to the board of su-
pervisors of his county at its next annual session thereafter, and the
board of Supervisors shall levy upon the taxable property of the
county a sum sufficient to pay its proportion of such expense and the
same when collected shall be paid to the commissioners of highways
of such town to be applied toward the payment of such expense.
§ 134. Joint liabilities of towns, and their joint contracts.—
Whenever any two or more towns shall be liable to make or main-
tain any bridge or bridges, the same shall be built and maintained
at the joint expense of such towns, without reference to town lines.
The commissioners of highways of all the towns, or of one or more
of such towns, the other refusing to act, may enter into a joint con-
tract for making and repairing such bridges.
§ 135. Refusal to repair. —If the commissioners of highways of
either of such towns, after notice in writing from the commissioners
of highways of any other of such towns, shall not within twenty
days give their consent in writing to build or repair any such bridge,
and shall not within a reasonable time thereafter do the same, the
commissioners of highways giving such notice may make or repair
such bridge, and then maintain an action in the name of the town,
against the town whose commissioners neglect or refuse to join in
such making or repairing, and in such action, the plaintiffs shall be
entitled to recover so much from the defendant, as the town would
be liable to contribute to the same, together with costs and interest.
§ 136. Proceedings in court.—Whenever any adjoining towns
shall be liable to make or maintain any bridge over any streams divid-
ing such towns, whether in the same or different counties, three free-
holders in either of such towns may, by petition signed by them, ap-
ply to the commissioners of highways in each of such towns, to build,
rebuild or repair such bridge, and if such commissioners refuse to
build, rebuild or repair such bridge within a reasonable time, either
for want of funds or any other cause, such freeholders, upon affidavit
and notice of motion, a copy of which shall be served on each of the
commissioners, at least eight days before the hearing, may apply to
the supreme court at a special term thereof, to be held in the judicial
42 HIGHw AY MANUAL OF NEW York.
district in which such bridge, or any part thereof, shall be located,
for an order requiring such commissioners to build, rebuild or repair
such bridge, and the court upon such motion may, in doubtful cases,
refer the case to some disinterested person to ascertain the requisite
facts in relation thereto, and to report the evidence thereof, to the
court. Upon the coming in of the report, in case of such reference
or upon or after the hearing of the motion, in case no such reference
shall be ordered, the court shall make an order thereon as the justice
of the case shall require. . If the motion be granted in whole or in
part, whereby funds shall be needed by the commissioners to carry
the order into effect, such court shall specify the amount of money
required for that purpose, and how much thereof shall be raised in
each town.
§ 137. Commissioners to institute proceedings.-The com-
missioners of highways of any such town, may institute and prose-
cute proceedings under this chapter, in the name of the town, to
compel the commissioners of such adjoining towns, to join in the
building, rebuilding or repairing of any such bridge, in like manner
as freeholders are hereby authorized.
§ 138. Their duty.—The order for building, rebuilding or re-
pairing a bridge being made, and a copy thereof being served on the
commissioners of highways of such adjoining towns respectively, the
commissioners of highways of such towns"shall forthwith meet and
fix on the plan of such bridge, or the manner of repairing the same,
and shall cause such bridge to be built, rebuilt or repaired out of any
funds in their hands applicable thereto; and if an adequate amount
of funds are on hand, they shall cause the same to be built, rebuilt
or repaired upon credit, or in part for cash and in part upon credit,
according to the exigency of the case; and the commissioners may
enter into a contract for building, rebuilding or repairing such bridge,
pledging the credit of each town for the payment of its appropriate
share, so far as the same shall be upon credit.
§ 139. Commissioners to report.—The commissioners of high-
ways of each town, shall make a full report of their proceedings in
the premises to the town board, at the time of making their annual
report. They shall attach to the copy of the order granted by the
supreme court, an accurate account under oath, of what has been
done in the premises, and deliver the same to the supervisor of their
town. The board of supervisors at their annual meeting, shall levy
a tax upon each of such towns, when in the same county, and upon
the appropriate town when in different counties, for its share of the
HIGHwAY MANUAL OF NEW YORK. 43
costs of building, rebuilding or repairing such bridge, after deducting
all payments actually made by the commissioners thereon; which
tax, including prior payments, shall in no case exceed the amount
specified in the order.
§ 140. Appeals.-Either party aggrieved by the granting or re-
fusing to grant such order by the court at special term, may appeal
from such decision to the general term of the Supreme court for the
review of the decision. The general term may alter, modify or
reverse the order, with or without costs.
§ 141. Power of court on appeal.—The special term may grant
or refuse costs as upon a motion, including also witnesses' fees, ref-
erees’ fees and disbursements. The appeal provided for in the last
preceding section, shall conform to the practice of the supreme court,
in case of anoeal from an order of a special term, to the general
term.
§ 142. Refusal to repair bridge.— Whenever any such bridge
shall have been or shall be so out of repair as to render it unsafe for
travelers to pass over the same, or whenever any such bridge shall
have fallen down, or been swept away by a freshet or otherwise, if
the commissioners of highways of the adjoining towns, after reason-
able notice of such condition of the bridge, have neglected or refused,
or shall neglect or refuse to repair or rebuild it, then whatever funds
have been or shall be necessarily or reasonably laid out or expended
in repairing such bridge, or in rebuilding the same, by any person or
corporation, shall be a charge on such adjoining towns, each being
liable for its just proportion; and the person or corporation who has
made such expenditure, or shall make such expenditures, may apply
to the Supreme court, at a special term, for an order requiring such
towns severally to reimburse such expenditures, which application
shall be made by serving papers upon the commissioners of highways
of each of such towns at least eight days; and the court may grant
an order requiring each of the adjoining towns to pay its just propor-
tion of the expenditure, specifying the same ; and the commissioners
of highways in each of such towns shall forthwith serve a copy of
such order upon the supervisor of each of their towns, who shall
present the same to the board of supervisors, at their next annual
meeting. The board of supervisors shall raise the amount charged
upon each town by the order, and cause the same to be collected and
paid to such persons or corporation as incurred the expenditure. The
order shall be appealable.
§ 143, Penalty, and notice on bridge.— The commissioners of
44 HIGHw AY MANUAL of NEw York.
highways may fix and prescribe a penalty, not less than one, nor
more than five dollars, for riding or driving faster than a walk on
any bridge in their town, whose chord is not less than twenty-five
feet in length and put up and maintain in a conspicuous place at each
end of the bridge, a notice in large characters, stating each penalty
incurred.
§ 144. Offense.—Whoever shall ride or drive faster than a walk
over any bridge, upon which notice shall have been placed, and shall
then be, shall forfeit for every offense, the amount fixed by such
commissioners, and specified in the notice.
§ 145. Iron bridges.—No town or its officers shall be compelled
to accept or pay for an iron or steel bridge exceeding two hundred
feet in length, or having a span or spans exceeding one hundred feet
in length, constructed therein or upon its borders, until the state
engineer and surveyor shall certify to the completion of the bridge,
pursuant to the contract under which it shall have been constructed,
with his approval of the manner of its construction and the material
thereof; and all contracts made for the construction of any such
bridge, shall be subject to the provisions of this section.
ARTICLE VI.
MISCELLANEOUS PROVISIONS.
SECTION 150. Papers, where filed.
151. When commissioners do not act.
152. Costs on motion.
153. Injuries to highways.
154. When town not liable for bridge breaking.
155. Steam traction engine on highway.
156. Trees, to whom they belong.
157. Carriages meeting to turn to the right
158. Intemperate drivers.
159. Drivers, when to be discharged.
160. Leaving horses without being tied.
161. Owners of certain carriages liable for acts of drivers.
162. Term “carriage * defined.
163. Entitled to free use of highways.
164 Penalties, how recovered.
*165. Extent of this chapter.*
SECTION 150. Papers, where filed.—All applications, certifi.
cates, appointments and other papers relating to the laying out,
altering or discontinuing of any highway shall be filed by the com-
*So in the original.
HIGHw AY MANUAL OF NEW YORK. 45
missioners of highways as soon as a decision shall have been made
thereon in the town clerk’s office of their town.
§ 151. When commissioners do not act.—When any commis-
sioner or other officer appointed by a court under this chapter shall
neglect or be prevented from serving, the court which appointed
him shall appoint another in his place.
§ 152. Costs on motion.—Costs of a motion to confirm, vacate
or modify the report of commissioners appointed by the court to lay
out, alter or discontinue a highway may be allowed in the discretion
of the court not exceeding fifty dollars. Costs of any other motion
in a proceeding in a court of record, authorized by this chapter,
may be allowed in the discretion of the court not exceeding ten
dollars.
§ 153. Injuries to highways.—Whoever shall injure any high-
way or bridge maintained at the public expense, by obstructing or
diverting any creek, water-course or sluice, or by dragging logs or
timber on its surface, or by any other act, or shall injure, deface or
destroy any mile-stone or guide-post erected on any highway, shall
for every such offense, forfeit treble damages.
§ 154. When town not liable for bridge breaking.—No town
shall be liable for any damage resulting to person or property, by
reason of the breaking of any bridge, by transportation on the same,
of any vehicle or load, together weighing four tons or over; but any
owner of such vehicle or load, or other person engaged in transport-
ing or driving the same over any bridge, shall be liable for all
damages resulting therefrom.
§ 155. Steam traction engines on highway.—The owner of a
carriage, vehicle or engine, propelled by steam, his servant or agent,
shall not allow, permit or use the same to pass over, through or upon
any public highway or street, except upon railroad tracks, unless
such owners, or their agents or servants, shall send before the same,
a person of mature age, at least one-eighth of a mile in advance,
who shall notify, and warn persons traveling or using such highway
or street, with horses or other domestic animals, of the approach of
such carriage, vehicle or engine; and at night such person shall carry
ared light, except in incorporated villages and cities.
§ 156. Trees, to whom they belong.—All trees standing or
lying on any land over which any highway shall be laid out, shall be
for the proper use of the owner or occupant of such land, except
such of them as may be requisite to make or repair the highway or
bridges on the same land.
46 HIGHw AY MANUAL of NEW YORK.
§ 157. Carriages meeting to turn to the right.—Whenever
any persons traveling with any carriages, shall meet on any turnpike
road or highway, the persons so meeting shall seasonably turn their
carriages to the right of the center of the road, so as to permit such
carriages to pass without interference or interruption, under the
penalty of five dollars for every neglect or offense, to be recovered
by the party injured.
§ 158. Intemperate drivers not to be engaged.—No person
owning any carriage for the conveyance of passengers, running or
traveling upon any highway or road, shall employ, or continue in
employment, any person to drive such carriage, who is addicted to
drunkenness, or to the excessive use of spirituous liquor; and if any
such owner shall violate the provisions of this section, he shall forfeit
at the rate of five dollars per day, for all the time during which he
shall have kept any such driver in his employment.
§ 159. Drivers, when to be discharged.—If any driver, while
actually employed in driving any such carriage, shall be guilty of
intoxication, to such a degree as to endanger the safety of the pas-
sengers in the carriage, the owner of such carriage shall, on receiving
written notice of the fact, signed by any one of said passengers, and
certified by him on oath, forthwith discharge such driver from his
employment; and every such owner, who shall retain, or have in
his service within six months after the receipt of such notice, any
driver who shall have been so intoxicated, shall forfeit at the rate of
five dollars per day, for all the time during which he shall keep any
such driver in his employment after receiving such notice.
§ 160. Leaving horses without being tied.—No driver of any
carriage used for the purpose of conveying passengers for hire, shall
leave the horses attached thereto, while passengers remain in the
same, without first making such horses fast with a sufficient halter,
rope or chain, or by placing the lines in the hands of some other
person, so as to prevent their running; and if any such driver shall
offend against the provisions of this section, he shall forfeit the sum
of twenty dollars.
§ 161. Owners of certain carriages liable for acts of drivers.
—The owners of every carriage running or traveling upon any turn-
pike road or highway, for the conveyance of passengers, shall be
liable jointly and severally, to the party injured, for all injuries and
damages done by any person in the employment of such owners, as
a driver, while driving such carriage, whether the accident” occasion.
* So in the original
Highway MANUAL of NEw York. 47
ing such injury or damage be willful or negligent, or otherwise, in
the same manner as such driver would be liable.
§ 162. Term “carriages” defined.—The term “carriage,” as
used in this article, shall be construed to include stage-coaches,
wagons, carts, sleighs, sleds and every other carriage or vehicle used
for the transportation of persons and goods, or either of them, and
bicycles, tricycles and all other vehicles propelled by manumotive or
pedomotive power.
§ 163. Entitled to free use of highways.-The commissioners,
trustees, or other authorities having charge or control of any high-
way, public street, parkway, driveway or place, shall have no power
or authority to pass, enforce, or maintain any ordinance, rule or regu-
lation, by which any person using a bicycle or tricycle, shall be
excluded or prohibited from the free use of any highway, public
street, avenue, roadway, driveway, parkway or place, at any time
when the same is open to the free use of persons having and using
other pleasure carriages; but nothing herein, shall prevent the pas-
Sage, enforcement, or maintenance of any regulation, ordinance or
rule, regulating the use of bicycles or tricycles in highways, public
streets, driveways, parkways and places, in such manner as to limit
and determine the proper rate of speed with which such vehicles may
be propelled, nor in such manner as to require, direct or prohibit the
use of bells, lamps and other appurtenances, nor to prohibit the use of
any vehicle upon that part of the highway, street or parkway, com-
monly known as the foot-path or sidewalk.
§ 164. Penalties, how recovered.—All penalties or forfeitures
given in this chapter, and not otherwise specially provided for, shall
be recovered by the commissioners of highways, in the name of the
town in which the offense shall be committed; and when recovered,
shall be applied by them in improving the highways and bridges in
such town.
ARTICLE VII.
REGULATION OF FERRIES.
SECTION 170. Licenses.
171. Undertaking.
172. Appendages for rope ferries.
173. Superintendent of public works may lease right of passage.
174. When schedule to be posted.
SECTION 170. Licenses.—The county court in each of the coun-
ties of this state, or the city court of a city, may grant licenses for
48 HIGHway MANUAL of NEW YORK.
keeping ferries in their respective counties and cities, to such persons
as the court may deem proper, for a term not exceeding five years.
No license shall be granted to a person, other than the owner of the
land through which that part of the highway adjoining to the ferry
shall run, unless the owner is not a suitable person or shall neglect
to apply after being served with eight days written notice from such
other person of the time and place at which he will apply for such
license, or having obtained such license, shall neglect to comply wità
the conditions of the license, or maintain the ferry. Every license
shall be entered in the book of minutes of the court by the clerk;
and a certified copy thereof shall be delivered to the person licensed.
When the waters over which any ferry may be used, shall divide
two counties or cities, or a county and city, a license obtained in
either of the counties or cities shall be sufficient to authorize trans-
portation of persons, goods, wares and merchandise, to and from
either side of such waters.
§ 171. Undertaking.—Every person applying for such license
shall, before the same is granted, execute and file with the clerk of
the court his undertaking, with one or more sureties, approved by
the court, to the effect that he will attend such ferry with sufficient
and safe boats and other implements, and so many men to work the
same as shall be necessary during the several hours in each day, and
at such rates as the court shall direct.
§ 172. Appendages for rope ferries.—Any person licensed to
Keep a ferry may, with the written consent of the commissioners
of highways of the town where such ferry may be, erect and main-
tain within the limits of the highway, at such point as shall be desig-
nated in such consent, a post or posts, with all necessary braces
and appendages, for a rope ferry.
§ 173. Superintendent of public works may lease right of
passage.—The superintendent of public works may where ferries
are now maintained at tide-water lease the right of passage for foot
passengers across state lands adjoining tide water for a period not
exceeding ten years, on such conditions as he may deem advan-
tageous to the state.
§ 174. When schedules to be posted.—Every person licensed
to operate or control any ferry in this state, or between this state
and any other state, operating from or to a city of fifty thousand
inhabitants or over, shall post in a conspicuous and accessible position
outside and adjacent to each entrance to such ferry, and in at least
HIGHw AY MANUAL of NEw York. 49
four accessible places, in plain view of the passengers upon each of
the boats used on such ferry, a schedule plainly printed in the Eng-
lish language, of the rates of ferriage charged thereon, and au-
thorized by law to be charged for ferriage over such ferry. If any
such person shall fail to comply with the provisions of this section,
or shall post a false schedule, he shall forfeit the sum of fifty dol-
lars for each days neglect or refusal to post such schedule, or any of
them, to be recovered by any person who shall sue therefor, in any
court of competent jurisdiction,
ARTICLE VIII.
REPEALING AND OTHER CLAUSESS,
SECTION 180. Laws repealed. #
181. Saving clause.
182. Construction.
183. When to take effect
Schedule.
SECTION 180. Laws repealed.—Of the laws enumerated in the
schedule hereto annexed, that portion specified in the last column is
repealed. Such repeal shall not revive a law repealed by any law
hereby repealed, but shall include all laws amendatory of the laws
hereby repealed.
§ 181. Saving clause.—The repeal of a law, or any part of it
specified in the annexed schedule, shall not affect or impair any act
done, or right accruing, accrued, or acquired, or penalty, forfeiture,
or punishment incurred prior to the time when this act takes effect,
under or by virtue of the laws so repealed, but the same may be as-
serted, enforced, prosecuted, or inflicted, as fully and to the same
extent, as if such laws had not been repealed; and all actions or
proceedings, civil or criminal, commenced under or by virtue of
the laws so repealed and pending February twenty-eighth, eighteen
hundred and ninety-one, may be prosecuted and defended to final
effect in the same manner as they might under the laws then exist-
ing, unless it shall be otherwise specially provided by law.
§ 182. Construction.—The provisions of this chapter, so far as
they are substantially the same as those laws existing on February
twenty-eighth, eighteen hundred and ninety-one, shall be construed
as a continuation of such laws, modified or amended, according to
the language employed in this chapter, and not as new enactments;
and references in laws not repealed to provisions of law incorporated
60 HIGHwa Y MANUAL of NEw York.
into this chapter and repealed, shall be construed as applying to the
provisions so incorporated: Nothing in this chapter shall be con-
strued to amend or repeal any provision of the Penal or
Code.
Criminal
§ 183. When to take effect.—This chapter shall take effect on
the first day of March, eighteen hundred and ninety-one.
SCHEDULE OF LAWS REPEALED.
Revised Statutes...... Part I, chapter 16....... All.
Revised Statutes. . . . . . Part I, chapter 20, title 13. All.
LAWS OF Chapter Sections.
1832 . . . . . . . . . . . . . . . . 107. . . . . . . . . . . . . . . . . . All
1833. . . . . . . . . . . . . . . . . . 149. . . . . . . . . . . . . . . . . . All
1832. . . . . . . . . . . . . . . . . . 274. . . . . . . . . . . . . . . . . . All
1884. . . . . . . . . . . . . . . . . . 267. . . . . . . . . . . . . . . . . . All
1835. . . . . . . . . . . . . . . . . 154. . . . . . . . . . . . . . . . . . All
1836. . . . . . . . . . . . * c e º & © 122. . . . . . . . . . . . . . . . . . All
1837. . . . . . . . . . . . . . . . . . 431. . . . . . . . . . . . . . . . . . All
1840. . . . . . . . . . . . . . . . . . 300. . . . . . . . . . . . . . . . . . All.
1841. . . . . . . . . . . . . . . . . . 225. . . . . . . . . . . . . . . . . . All.
1845. . . . . . . . . . . . . . . . 180. . . . . . . . . . . . . . . . . . 5, 6, 7, 9,12,13,
14.
1847. . . . . . . . . . . . . . . . . . 455. . . . . . . . . . . . . . . . . . 3, 4, 5, 6, 7, 8,
9, 11, 12, 20,
21, 22, 23.
1858. . . . . . . . . . . . . . . . . . 63. . . . . . . © C C C C C C Q All.
1858. . . . . . . . . . . . . . . . . . 135. . . . . . . © e o e o ºs e e s e e All
1858. . . . . . . . . . . . . . . . . . 174. . . . . . . . . . . . . . . . . . All
1855. . . . . . . . . . . . . . . . • 255. . . . . . . . . . . . . . . . . . All
1857. . . . . . . . . . . . . . . . . . 388. . . . . . . . . . . . . . . . . . All
1857. . . . . . . . . . . . . . . . . . 491. . . . . . . . . . . . . . . . . . All
1857. . . . . . . . . . . . . . . . . . 615 . . . . . . . . . . . . . . . . . 1
1857. . . . . . . . . . . . . . . . . . 689. . . . . . . . . . . . . . . . . . All
1858. . . . . . . . . . . . . . . . . . 51. . . . . . . . . . . . . . . . . . All
1858. . . . . . . . . . . . . . . . . . 108. . . . . . . . . . . . . . . . . . All
1860. . . . . . . . . . . . . . . . . . 61. . . . . . . . . . . . . . . . . . All
1860. . . . . . . . . . . . . . . . . . 468. . . . . . . . . . . . . . . . . . All
1861. . . . . . . . . . . . . . . . . . 30. . . . . . . . . . . . . . . . . . All
1861. . . . . . . . . . . . . . . . . . 811. . . . . . . . . . . . . . . . . . All
1862. . . . . . . . . . . . . . . . . . 248. . . . . . . . . . . . . . . . . . All
1868. . . . . . . . . . . . . . . . . . 93. . . . . . . . . . . . . . . . . . All
1863. . . . . . . . . . . . . . . . . . 444. . . . . . . . . . . . . . . . . . All
1864. . . . . . . . . . . . . . . . . . 395. . . . . . . . . . . . . . . . . . All
1865. . . . . . . . . . . . . . . . . . 442. . . . . . . . . . . . . . . . . . All
1865. . . . . . . . . . . . . . . . . . 522. . . . . . . . . . . . . . . . . . 7
1866. . . . . . . . . . . . . . . . . . 180. . . . . . . . . . . . . . . . . . All
HIGHway MANUAL of NEw York.
LAWS OF Chapter Sections.
1866. . . . . . . . . . . . . . . . . . 770. . . . . . . . . . . . . . . . . . All.
1868. . . . . . . tº e º O e º e º ſº tº º 791. . . . . . . tº & © º 0 & 0 & © e & All.
1868. . . . . . © tº 9 0 e º sº e º O & C 843. . . . . . . . . . . . . . . . . . All
1869. . . . . . . . . . . . . . . . . 24. . . . . . . . . . . . . . . . . . All
1869. . . . . . . . . . . . . . . . . . 131. . . . . . . . . . . . . . . . . . 1
1869. . . . . . . . . . . . . . . . . . 598. . . . . . . . . . . . . . . . . . All.
1870. . . . . . . . . . . . . . . . . . 461. . . . . . . . . . . . . . . . . . All.
1872. . . . . . . . . . . . . . . . . . 274. . . . . . . . . . . . . . . . . . 1
1873...... • * c s s a e º tº e s e 63. . . . . . . . . . . . . . . . . . All.
1878. . . . . . . . . . . . . . . . . . 69. . . . . . . . . . . . . . . . . . All.
1878. . . . . . . . . . . . . . . . . 395. . . . . . . . . . . . . . . . . . All.
1873. . . . . . . . . . . . . . . . . . 448. . . . . . . . . . . . . . . . . . All.
1873. . . . . . . . . . . . . . . . . . 477. . . . . . . . . . . . . . . . . . All
1873. . . . . . . . . . . . . . . . . . 773. . . . . . . . . . . . . . . . . . All.
1874. . . . . . . . . . . . . . . . . . 169. . . . . . . . . . . . . . . . . . All.
1874. . . . . . . . . . . . . . . . . . 570. . . . . . . . . . . . . . . . . . All.
1875. . . . . . . . . . . . . . . . . . 22. . . . . . . . . . . . . . . . . All.
1875. . . . . . . . . . . . . . . . . . 196. . . . . . . . . . . . . . . . . . All.
1875. . . . . . . . . . . . . . . . . . 841. . . . . . . . . . . . . . . . . . All.
1876. . . . . . . . . . . . . . . . . . 340. . . . . . . . . . . . . . . . . . All.
1876. . . . . . . . . . . . . . . . . . 348. . . . . . . . . . . . . . . . . . All.
1877. . . . . . . . . . . . . . . . . . 197. . . . . . . . . . . . . . . . . . All
1877. . . . . . . . . . . . . . . . . . 344. . . . . . . . . . . . . . . . . . All
1878. . . . . . . . . . . . . . . . . . 44. . . . . . . . . . . . . . . . . . All
1878. . . . . . . . . . . . . . . . . . 49. . . . . . . . . . . . . . . . . . All
1878. . . . . . . . . . . . . . . . . . 114. . . . . . . . . . . . . . . . . . All
1878. . . . . . . . . . . . . . . . . . 245. . . . . . . . . . . . . . . . . . All
1879. . . . . . . . . . . . . . . . . . 67. . . . . . . . . . . . . . . . . . All
1880. . . . . . . . . . . . . . . . . . 114. . . . . . . . . . . . . . . . . . All.
1880. . . . . . . . . . . . . . . . . . 305 . . . . . . . . . . . . . . . . . . All
1880. . . . . . . . . . . . . . . . . . 308. . . . . . . . . . . . . . . . . . All
1880. . . . . . . . . . . . . . . . . . 508. . . . . . . . . . . . . . . . . . All
1881. . . . . . . . . . . . . . . . . . 233. . . . . . . . . . . . . . . . . . All,
1881. . . . . . . . . . . . . . . . . . 518. . . . . . . . . . . . . . . . . . All
1881. . . . . . . . . . . . . . . . . . 696. . . . . . . . . . . . . . . . . . All
1881. . . . . . . . . . . . . . . . . . 700. . . . . . . . . . . . . . . . . . All
1883. . . . . . . . . . . . . . . . . . 846. . . . . . . . . . . . . . . . . . All
1883. . . . . . . . . . . . . . . . . . 371. . . . . . . . . . . . . . . . . Ali.
1888. . . . . . . . . . . . . . . . . . 898. . . . . . . . . . . . . . . . . . All
1884. . . . . . . . . . . © e º 'º e º 'º 220. . . . . . . . . . . . . . . . . . All
1884. . . . . . . . . . . . . . . . . . 251. . . . . . . . . . . . . . . . . . All.
1884. . . . . . . . . . . . . . . . . . 359. . . . . . . . . . . . . . . . . . All
1884. . . . . . . . . . . . . . . . . . 896. . . . . . . . . . . . . . . . . . All.
1884. . . . . . . º tº º º º e º º sº e tº 479. . . . . . . . . . . . . . . . . . All.
1886. . . . . . . . . . . . . . . . . . 269. . . . . . . . . . . . . . . . . . All.
1886. . . . . . . tº e º º ſº e º 'º e º 't 344. . . . . . . . . . . . . . . . . . All.
1886. ... tº e C C Q Q & Q & Q Q Q tº 423. . . . . . . . . . . . . . . . . . All
52 HIGHway MANUAL OF NEW YORK.
LAWS OF Chapter Sections.
T1886. . . . . . . . . . . . . . . . . . 452. . . . . © tº Q tº e Q & Q ſº a tº a e All
1887. . . . . . . . . . . . . . . . . . 471. . . . . . . . . . . . . . . . . . All
1887. . . . . . . . . . . . . . . . . . 526. . . . . . © tº C & G G & © e º 'º gº All
1887. . . . . . . . . tº e º e º e º e ºs 704. . . . . . . . . . . . . . . . . . All
1888. . . . . . . . . . . . . . . . . . 240. . . . . © tº C C C C e º e º e s e All
1888. . . . . . * tº e º 'º e º e º 'º C 260. . . . . . . . . © C Q & Q & e º e All
1889. . . . . . . . . . . . . . . . . . 120. . . . . . . © C & © º e º e º e a All
1889 tº P & © tº e e º e o & e º 'º 146. . . . . . . . . . . . . . . . . . All
Selections from the Town Law Relating to
Highways.
§ 12. Election of officers.—There shall be elected at the annual
town meeting in each town, by ballot, one justice of the
peace, one assessor, one collector, one commissioner of excise,
one or two overseers of the poor, except in the counties of
Richmond and Kings, one, two or three commissioners of
highways, not more than five constables, and two Inspectors
of election for each election district in the town; and at
each alternate annual town meeting, one supervisor and
one town clerk, except in the county of Kings. If there
shall be any vacancies in the office of supervisor, town clerk,
justice of the peace, assessor, commissioners of excise, com-
missioners of highways, or overseers of the poor, of any
town at the time of holding its annual town meeting, persons
shall then also be chosen to fill such vacancies, who shall
hold their offices for the residue of the unexpired term for which
they are respectively elected. All such officers, except justice of
the peace, shall hold their respective offices until others are
elected in their place and have qualified. As amended by L.
1898, ch, 344.]
§ 17. Commissioners of highways.—The electors of each
town may, at their annual town meetings, determine by resolu-
tion whether there shall be elected in their town one or three
commissioners of highways. If only one shall be determined
upon, and it shall be a town having but one commissioner of
highways, one commissioner only shall thereafter be elected
at each alternate annual town meeting who shall hold his
office for two years. If three shall be determined upon,
three commissioners of highways shall then be elected
54 HIGHWAY MANUAL OF NEw York.
for the terms of one, two or three years respectively;
and the person having the greatest number of votes for each
term so designated shall be deemed duly elected, and shall hold
office for the term so designated, and one commissioner only for
a full term shall thereafter annually be elected, who shall hold
his office for three years. Whenever any town shall have deter-
mined upon having three commissioners of highways and shall
desire to have but one, the electors thereof may do so by a resolu-
tion taken at an annual town meeting, and when such resolution
shall have been adopted, no other commissioner shall be elected
or appointed until the term or terms of those in office at the
time of adopting the resolution shall expire or become vacant; and
they may act until their terms shall severally expire or become
Vacant as fully as if three continued in office. When there shall
be but one commissioner of highways in any town, he shall pos-
SeSS all the powers and discharge all the duties of commissioners
of highways as prescribed by law. [As amended by L. 1893,
ch. 344.]
§ 23. Fence viewers. — The assessors and commissioners of
highways elected in every town shall, by virtue of their offices, be
fence viewers of their town.
§ 55. Refusal to serve as overseer of highways or pound-
master. —If any person chosen or appointed to the office of over.
Seer of highways or pound-master shall refuse to serve, he shall
forfeit to the town the sum of ten dollars. {\
§ 56. Town officers to administer oaths.--Any town officer
may administer any necessary oath in any matter or proceeding
lawfully before him, or to any paper to be filed with him as such
Officer.
§ 63. Undertaking of commisioners of highways.-Every
commissioner of highways shall, within ten days after notice of
his election or appointment, execute an undertaking with two or
more sureties, to be approved by the supervisor of his town, to
HIGHwAY MANUAL of NEw Yorf. 55
the effect that he will faithfully discharge his duties as such
commissioner, and within ten days after the expiration of his
term of office, pay over to his successor all moneys remaining in
his hands as such commissioner, and render to such successor a
true account of all moneys received and paid out by him as such
commissioner, which undertaking shall be delivered to the super-
visor and filed by him in the office of the town clerk within ten
days thereafter.
§ 64. Resignation of town officers.--Any three justices of
the peace of a town may, for sufficient cause shown to them accept
the resignation of any town officer of their town; and whenever
they shall accept any such resignation, they shall forthwith give
notice thereof to the town clerk of the town.
§ 65. Filling of vacancies.—When a vacancy shall occur or
exist in any town office, the town board or a majority of them
may, by an instrument under their hands and seals, appoint a
suitable person to fill the vacancy, and the person appointed,
except justices of the peace, shall hold the office until the next
annual town meeting. A person so appointed to the office of
justice of the peace shall hold the office until the next annual
town meeting, unless the appointment shall be made to fill the
vacancy of an officer whose term will expire on the thirty-first day
of December next thereafter, in which case the term of office of
the person so appointed shall expire on the thirty-first day of
December next succeeding his appointment. The board making
the appointment shall cause the same to be forthwith filed in the
office of the town clerk, who shall forthwith give notice to the
person appointed. A copy of the appointment of a justice of the
peace shall also be filed in the office of the county clerk, before the
person appointed shall be authorized to act.
§ 66. Form of undertaking, and liability thereon.—Every
undertaking of a town officer, as provided by this chapter or other.
wise, must be executed by such officer and his sureties and
56 HIGHwAY MANUAL of NEw York.
acknowledged or proven and certified in like manner as deeds to
be recorded, and the approval indorsed thereon. The parties
executing such undertaking shall be jointly and severally liable,
regardless of its form in that respect, for the damages to any
person or party by reason of a breach of its terms.
$ 82. Fire in woods. – Whenever the woods in any town shall
be on fire, it shall be the duty of the justices of the peace, the
supervisor and commissioners of highways of such town, and of
each of them, to order such and so many of the inhabitants of such
town liable to work on the highways, and residing in the vicinity
of the fire, as they shall severally deem necessary, to repair to the
place where such fire shall prevail, and there to assist in extin-
guishing the same, or in stopping its progress.
§ S4. Delivery of books and papers by outgoing officers to
successor.—Whenever the term of office of any supervisor, town
clerk, commissioner of highways or overseer of the poor shall
expire, or when either of such officers shall resign, and another
person shall be elected or appointed to the office, the succeeding
officer shall, immediately after he shall have entered on the duties
of his office, demand of his predecessor all the records, books and
papers under his control belonging to such office. Every person
so going out of office, whenever so required, shall deliver upon oath
to his successor all the records, books and papers in his posses.
sion or under his control belonging to the office held by him,
which oath may be administered by the officer to whom such
delivery shall be made, and shall, at the same time pay over to
his successor the moneys belonging to the town remaining in his
hands. If any such officers shall have died, the successors or
Successor of such officer shall make such demand of the executors
or administrators of such deceased officer, and such executors
or administrators shall deliver, upon the like oath, all records,
books and papers in their possession, or under their control, belong-
ing to the office held by their testator or intestate. If any person
So going out of office, or his executors or administrators, shall
refuse or neglect, when lawfully required, to deliver such records,
HIGHway MANUAL of NEw YoFK. 57
books or papers, he shall forfeit to the town, for every such
refusal or neglect, the sum of two hundred and fifty dollars; and
officers entitled to demand such records, books and papers may
compel the delivery thereof in the manner prescribed by law.
§ 178. Compensation of town officers.—The following town
officers shall be entitled to compensation at the following rates
for each day actually and necessarily devoted by them to the
service of the town, in the duties of their respective offices, when
no fee is allowed by law for the service. The supervisor except
when attending the board of supervisors, town clerks, assessors,
commissioners of highways, justices of the peace, overseers of the
poor, inspectors of election and clerks of the polls, two dollars
per day, each of them. [As amended by L. 1893, ch. 297.]
8
Selections from the County Law Relating to
Highways.
§ 12. General powers. — The board of supervisors shall:
7. Make such laws and regulations as they may deem necessary
for the destruction of wild and noxious animals and weeds, within
the county. wº
§ 61. County highways and bridges. – A board of supervisors
Shall, On the application of twenty-five resident tax-payers, when
Satisfied that it is for the interest of the county, lay out, open,
alter, or discontinue a county highway therein, or cause the same
to be done, and construct, repair, or abandon a county bridge
therein, or cause the same to be done, when the board shall deem
the authority conferred on commissioners of highways insufficient
for that purpose, or that the interests of the county will be pro-
moted thereby. All expenses so incurred shall be a county
charge. Such powers shall not be exercised unless the applicants
therefor shall prove to the board the service of a written notice,
personally or by mail, on a commissioner of highways of each
town in the county, at least twelve days prior to the presentation
of such application, specifying therein the object thereof; and
when the application is to lay out a highway, or construct a
bridge, the route or location thereof; and in all other cases, a
designation of the highway or bridge to be affected thereby.
§ 62. Location and construction of bridges.— The board may
authorize the location, change of location and construction of any
bridge, applied for by any town, or towns, jointly, or by other
than a municipal corporation, created under a general law, or by
any corporation or individual for private purposes; and if a
public bridge, erected other than by a municipal corporation,
establish the rates of toll for crossing such bridge; but if such
HIGHWAY MANUAL of NEw YoFK. 59
bridge is to cross a navigable stream, provision shall be made
in the resolution or permission authorizing the same, for the
erection and maintenance of a suitable draw, to prevent any
obstruction of the navigation of such stream; and if a private
bridge, provision shall be made that the draw shall be kept open
as may be required to permit all vessels to pass without loss of
headway. When such bridge shall be intersected by the line of
counties, the action of the board of supervisors of each county
shall be necessary to give the jurisdiction herein permitted.
§ 63. County aid to towns for the construction and repair of
bridges.—If the board of supervisors of any county shall deem
any town in the county to be unreasonably burdened by its
expenses for the construction and repair of its bridges, the board
may cause a sum of money, not exceeding two thousand dollars
in any one year, to be raised by the county and paid to such
town to aid in defraying such expenses.
§ 64. Construction by county of destroyed bridges.— If any
bridge within a county, or intersected by any boundary line of a
county, shall be destroyed by the elements, and the board of
supervisors of the county shall deem that the expenses of the con-
struction of a new bridge at or near the site of the bridge so
destroyed would be too burdensome upon the town or towns
within such county, which would otherwise be liable therefor, the
board of supervisors of any such county may provide for the eon-
struction and completion of a bridge and all necessary approaches
thereto, at or near the site of the bridge so destroyed. If the
bridge so destroyed shall have been constructed by a corporation
created under a general law, and the site thereof, and of the
approaches thereto, or either, shall be the property of such cor-
poration, such board of supervisors may purchase the interest of
such corporation, or any other person, in such site or approaches,
if such purchase can be accomplished upon reasonable terms;
but if such site or approaches can not be lawfully acquired by
such purchase, or otherwise, upon reasonable terms, such board
may acquire title to premises on either side of such site, and
60 HIGHWAY MANUAL OF NEW YORK.
provide for the construction of a bridge and approaches thereto,
at such place, at the expense of the county, or of the two counties
jointly, as the case may be, provided such bridge shall be so
located as not to increase the distance to be traveled upon the
highway to reach each end of such bridge more than five rods. Any
board of supervisors providing for the construction of any such
bridge may determine by resolution whether the expenses of the
maintenance and repair thereof shall thereafter be a county
charge, Or a charge upon such town or towns.
§ 65. Apportionment of expenses when a bridge is intersected
by town or county lines.—If any public free bridge, intersected
by the boundary line of a county, shall also be intersected by the
boundary line of two or more towns in such county, the board of
supervisors of such county shall apportion as it shall deem equit.
able, between such towns, their respective shares of the expenses
of the construction, maintenance and repair of such bridge, and
the amount to be received by each town, of the money raised by
the county to be paid toward defraying the expenses of con-
structing and repairing such bridge.
§ 66. County's share of expenses to be raised and paid to the
commissioners of highways of the towns.—The board of super-
visors shall cause to be raised and collected the amount to be paid
by the county to any town toward the expenses of a bridge and
when collected the same shall be paid to the commissioners of
highways of the town, to be applied by them toward the payment
of such expenses.
§ 67. May authorize a town to construct a bridge outside of a
boundary line.—The board of supervisors of any county may
authorize any town, on a vote of a majority of the electors thereof
voting at a regular town meeting, to appropriate a sum, or pledge
its credit, to aid in, or wholly construct and maintain a bridge
outside the boundaries of the town or county, or from or within
the boundary line of any town into another town or county, but
forming a continuation of highways leading from such town or
county, and deemed necessary for the public convenience.
HIGHWAY MANUAL OF NEW YORK. 61
§ 68. Bridges over county lines.— The board shall provide
for the care, maintenance, preservation and repair of any draw,
or other bridge intersecting the boundary line of counties or
towns, and which bridge is by law a joint charge on such counties
or towns, or on the towns in which it is situated; and to severally
apportion, as it may deem equitable, the expense thereof on the
towns respectively liable therefor, or on the respective counties
when liable; but when such bridge shall span any portion of the
navigable tide-waters of this state, forming, at the point of cross-
ing, the boundary line between two counties, such expense shall
be a joint and equal charge on the two counties in which the
bridge is situated, and the board of supervisors in each of such
counties shall apportion such expense among the several towns
and cities in their respective counties, or upon any or either of
such towns and counties, as in their judgment may seem proper;
but no town or city not immediately adjacent to such waters at
the point spanned by such bridge, shall be liable for a larger pro-
portion of such expense than the taxable property of such town
or city bears to the whole amount of taxable property of such
County; but no such bridge shall be constructed unless authorized
by resolution adopted by the board of supervisors in each of such
counties.
$ 69. Authorize towns to borrow money.—The board may,
upon the application of any town or towns liable to taxation for
constructing, building or repairing any highway or bridge therein,
or upon its borders pursuant to a vote of a majority of the electors
thereof at an annual town meeting, or special town meeting
called for that purpose, or upon the written request of the commis-
sioners of highways and town board of such town or towns,
authorize such town or towns to construct, build and repair such
highway or bridge, and to borrow such sums of money for and on
the credit of the town as may be necessary for that purpose, and
to lay out, widen, grade or macadamize such highway, or to pur-
chase for public use any plankroad, turnpike, toll-road or toll-
bridge in such town or towns, and may authorize the company
62 HIGHWAY MANUAL OF NEW YORK.
owning the same to sell the same, or any part thereof or the fran-
chises thereof, or to pay any debt incurred in good faith by or in
behalf of such town or towns for such purpose. If such highway
or bridge shall be situated in two or more towns in the same
county, the board shall apportion the expenses among such towns
in such proportion as shall be just.
§ 70. The raising and expenditure of moneys.-The board shall,
from time to time, impose upon the taxable property of such
towns sufficient tax to pay such obligations as they shall become
due. The supervisor and town clerk shall each keep a record,
showing the date and amount of the obligations issued, the time
and place of their payment, and the rate of interest thereon. The
obligations shall be delivered to the supervisor of the town, who
shall dispose of the same for not less than par, and pay the pro-
ceeds thereof to the commissioners of highways of the town,
or to such other officer as shall be designated by the board of
supervisors, to be used by them for the purposes for which the
same were appropriated; but not more than five hundred dollars
of such proceeds shall be expended upon any highway or bridge,
except in pursuance of a contract made by a contractor with the
commissioners of highways of the town, or other officer desig-
nated by the board of supervisors, and approved by the town
board, no member of which shall be interested therein. If such
highway or bridge shall be wholly or partly within the limits of
an incorporated village, the consent of a majority of the trustees
of such village shall be necessary for the action of the board of
supervisors as herein provided.
§ 71. Streets outside of city limits.--When any territory in a
county containing an incorporated city of one hundred thousand
inhabitants, excepting the towns of Flatbush and New Lots in the
county of Kings, has been mapped into streets and venues pursu-
ant to law, the board of supervisors may authorize the Cstablish-
ment of a plan for the grade of such streets and avenues, laying
Out, Opening, grading, constructing, closing and change of line of
any one or more of them, and provide for the assessment on prop-
HIGHwAY MANUAL OF NEW YORK. 63
erty intended to be benefited thereby, and fixing assessment dis-
tricts therefor, and for the levy, collection and payment of the
amount of damages sustained and the charges and expenses
incurred, or which may be necessary to incur in carrying out
such provisions, but such last named power in regard to laying out,
opening, grading, constructing and change of line, of such streets
or avenues or defraying the expenses thereof, shall only be
exercised on the petition of the property owners, who own
more than one-half of the frontage on any such street
or avenue, or on a certificate of the town board and commissioners
of highways of the town, that the same is, in their judgment,
proper and necessary for the public interest. If the streets and
avenues, in respect to which such action is proposed to be taken,
shall lie in two or more towns, a like certificate shall be required
of the town board and commissioners of highways of each town.
Before making such certificate, such town board, or boards and
commissioners of highways, shall give ten days' notice by publi-
cation in one of the daily papers of the county, and by conspicu-
ously posting in six public places in each of such towns, of the
time and place at which they will meet to consider the same, at
which meeting the public, and all persons interested, may appear
and be heard in relation thereto. No such street or avenue shall
be laid out, opened or constructed, upon or across any lands
acquired by the right of eminent domain, and held in fee for
depot purposes by any railroad corporation, or upon or across
any lands now held by a corporation formed for the purpose of
improving the breed of horses, without the consent of such cor-
porations. No town officer shall charge anything for his services
under this section, nor shall any charge be made against any
such town or the property therein, for the expense of the publica-
tion of the notice herein required.
§ 72. Survey and records of highway.—The board may author-
ize and direct the commissioners of highways of any town, to
cause a survey to be made, at the expense of the town, or” any
* So in the original.
64 HIGHWAY MANUAL OF NEW YORK.
or all of the highways therein, and to make or complete a syste-
matic record thereof, or to revise, collate and rearrange existing
records of highways, and correct and verify the same by new sur-
veys and to establish the location of highways by suitable monu-
ments. Such records so made, or revised, corrected and verified
shall be deposited with the town clerk of the town, and shall
thereafter be the lawful records of the highways which they
describe; but shall not affect rights pending in any judicial pro-
ceedings commenced before the deposit of such revised records
with the town clerk.
§ 73. Regulation of toll rates.—Such boards shall have power,
by a vote of two-thirds of all the members elected to futhorize an
alteration, reduction or change of the rates of toll charged or
received by any turnpike, plank or gravel road, or other toll road
within such county, or by any bridge company ºr ferry within
such county, or, if within more than one county, then by joint
action with the supervisors of such counties, provided such altera-
tion shall be asked for by the directors, trustees or owners of such
road, bridge or ferry; but that no increase of toll shall be so
authorized unless notice of intention to apply for such increase
shall have been published in each of the newspapers published in
such county, once in each week for six successive weeks next before
the annual election of supervisors in such county; and any alteration
in the rates of toll authorized by any board of supervisors may be
changed or modified by any subsequent board, on their own motion,
by a like Vote of two-thirds of all the members elected to such
board; but nothing herein contained shall affect or abridge the
powers of any city.
§ 74. Highways in counties of more than 300,000 acres of
unimproved land.—The board may establish separate highway
districts in counties containing more than three hundred thou-
sand acres of unimproved unoccupied forest lands, for the pur.
pose of constructing highways through such lands; such highway
districts to be established upon the application of the owners of
HIGHway MANUAL OF NEw York. 65.
more than one-half of the non-resident lands therein. Any such
highway district shall consist of contiguous tracts or parcels of
land, and may include parts of one or more towns; and they may
be changed, altered or abolished at any time by the board. Such
board may appoint one or more commissioners to lay out and con-
struct such highways in any such district, and prescribe the
powers and duties, and direct the manner in which highway taxes
shall be assessed, levied and collected upon the lands within the
district, and the manner of expenditure thereof.
They may also authorize such commissioners to borrow money
on such terms as they may deem just, but not exceeding the
amount of ten years' highway taxes upon such lands; and may,
for the purpose of repaying such loan, set apart and appropriate
the highway taxes upon such lands, for a period not exceeding
ten years from the time of making such loan.
§ 75. Appropriation of certain non-resident highway taxes.—
The board may, upon the application of the owners representing
a majority in value, as shall be ascertained from the last annual
assessment-roll of the real estate lying along the line of any high-
way, laid out through unimproved lands, in cases not provided for
in the last preceding section authorize the appropriation of the
non-resident highway tax on the lands lying along such line, for
the improvement of such highways.
$ 76. Balance of state appropriations.—The board may direct
the expenditure of any non-resident highway or bridge tax, set
apart by an act of the legislature, in counties wherein such non-
resident lands are situated, When the Official life of commis-
sioners appointed to receive and expend such taxes has expired.
§ 77. Alteration of state roads. – The board may authorize
the commissioners of highways of any town in their county to
alter or discontinue any road or highway therein, which shall have
been laid out by the state under the same conditions that would
govern their actions in relation to highways that have been laid
out by local authorities.
9
66 HIGHWAY MANUAL OF NEW YORK.
§ 78. Further powers.-The board may make such other local
and private laws and regulations concerning highways, alleys,
bridges and ferries within the county, and the assessment and
apportionment of highway labor or taxes therefor, not incon-
sistent with law, as it may deem necessary and proper, when the
purposes of such laws and regulations can not be accomplished
under the foregoing provisions, or general laws of the state.
Selections from the State Constitution Relating
to Highways and Highway Officers.
ARTICLE I.
Sec. 7. When private property shall be taken for any public
use, the compensation to be made therefor, when such compensa-
tion is not made by the State, shall be ascertained by a jury or
by not less than three commissioners appointed by a court of
record, as shall be prescribed by law. Private roads may be
opened in the manner to be prescribed by law; but in every case
the necessity of the road and the amount of all damage to be sus-
tained by the opening thereof shall be first determined by a jury
of freeholders, and such amount, together with the expenses of
the proceeding, shall be paid by the person to be benefited.
ARTICLE III.
Sec. 18. The Legislature shall not pass a private or local bill
in any of the following cases:
* * * + * * * * †.
Laying out, opening, altering, working or discontinuing roads,
highways or alleys, or for draining swamps or other low lands.
ARTICLE IIT
Extract from Section 18.- No law shall authorize the con-
struction or operation of a street railroad except upon the condi-
tion that the consent of the owners of one-half in value the
as property bounded on, and the consent also of the local authorities
having the control of that portion of a street or highway upon
which it is proposed to construct or operate such railroad be first
obtained, or in case the consent of such property owners can not
be obtained, the general term of the Supreme court, in the dis-
68 IIIGHWAY MANUAL OF NEw Yor.R.
trict in which it is proposed to be constructed, may, upon applica-
tion, appoint three commissioners who shall determine, after a
hearing of all parties interested whether such railroad ought to
be constructed or operated, and their determination, confirmed
by the court, may be taken in lieu of the consent of the property-
OWIlêI’S.
ARTICLE XII.
Section 1. Members of the legislature (and all officers, executive
and judicial, except such inferior officers as shall be by law.
exempted) shall, before they enter on the duties of their respective
offices, take and subscribe the following oath or affirmation: “I
do solemnly swear (or affirm) that I will support the constitution
of the United States, and the constitution of the State of New York,
and that I will faithfully discharge the duties of the office of
tº º e º ºs e º 'º gº º according to the best of my ability;” and all such
officers who shall have been chosen at any election, shall, before
they enter on the duties of their respective offices, take and sub-
scribe the oath or aftirmation above prescribed together with the
following addition thereto, as part thereof: “And I do further
solemnly swear (or affirm) that I have not directly or indirectly
paid, offered or promised to pay, contributed, or offered or prom-
ised to contribute any money or other valuable thing as a con-
sideration or reward for the giving or withholding a vote at the
election at which I was elected to said office, and have not made
any promise to influence the giving or withholding any such
vote,” and no other oath, declaration or test shall be required as
a qualification for any office of public trust.
Penal Code, § 42. Acting in a public office without having
qualified.—A person who executes any of the functions of a publie
office without having taken and duly filed the required oath of
office, or without having executed and duly filed the required
security, is guilty of a misdemeanor, as prescribed by law.
Selections from the Railroad Law Relating to
Highways.
§ 11. ‘Intersection of highways, additional lands for.— No
railroad corporation shall erect any bridge or other obstruction
across, in or over any stream or lake, navigated by steam or sail
boats at the place where it may be proposed to be erected, nor
shall it construct its road in, upon or across any street of any city
Without the assent of the corporation of such city, nor across, upon
Or along any highway in any town or street in any incorporated
village, without the order of the supreme court of the district in
which such highway or street is situated, made at a special term
thereof, after at least ten days’ written notice of the intention
to make application for such order shall have been given to the
commissioners of highways of such town, or board of trustees of
the village in which such highway or street is situated. Every
railroad corporation which shall build its road along, across or
upon any stream, watercourse, street, highway, plankroad or turn-
pike, which the route of its road shall intersect or touch, shall
restore the stream or watercourse, street, highway, plankroad and
turnpike, thus intersected or touched, to its former state, or to
such state as not to have unnecessarily impaired its usefulness,
and any such highway, turnpike or plankroad may be carried by
it, under or over its track, as may be found most expedient.
Where an embankment or cutting Shall make a change in the line
of such highway, turnpike or plankroad desirable, with a view to
a more easy ascent or descent, it may construct such highway,
turnpike or plankroad, on such new line as its directors may select,
and may take additional lands therefor by condemnation if neces-
sary. Such lands so taken shall become part of such intersecting
highway, turnpike or plankroad, and shall be held in the same
manner and by the same tenure as the adjacent parts of the high-
70 HIGHWAY MANUAL OF NEW YORK.
way, turnpike or plankroad are held for highway purposes. Every
railroad corporation shall pay all damages sustained by any turn-
pike or plankroad corporation in consequence of its crossing or
occupation of any turnpike or plankroad, and in case of inability
to agree upon the amount of such damages it may acquire the
right to such crossing or occupation by condemnation.
§ 33. Sign boards and flagmen at crossings.-- Every railroad
corporation shall cause boards to be placed, well supported and
constantly maintained across each traveled public road or street,
where the same is crossed by its road at grade. They shall be
elevated so as not to obstruct travel, and to be easily seen
by travelers; and on each side shall be painted in capital letters,
each at least nine inches in length and of suitable width, the
words: “Railroad crossing; look out for the cars; ” but such
boards need not be put up in cities and Villages, unless required
by the officers having charge of the streets. At any point where
a railroad crosses a street, highway, turnpike, plankroad, or
traveled way at grade, or where a steam railroad crosses a horse
railroad at grade, and the corporation owning Or operating such
railroad, refuses, upon request of the local authorities to station
a flagman or erect gates, to be opened and closed when an engine
or train passes, the Supreme court or the county court. may, upon
the application of the local authorities and upon ten days' notice
to the corporation, order that a flagman be stationed at such
point, or that gates shall be erected thereat, and that a person be
stationed to open and close them when an engine or train passes,
or may make such other order respecting the same as it deems
proper. Whenever the crossings by a railroad at grade of the
streets, highways, turnpikes, plankroads, or traveled ways of any
village or city, having a population by the last state or federal
enumeration of less than fifty thousand, shall be protected by gates
with persons to open and close the same, when an engine or
train passes, the local authorities of the city or village shall
not impose any limitation, less than forty miles an hour, on the
rate of speed at which such engine or train shall be run, or
enforce any existing limitation upon such rate of speed, less than
forty miles an hour. [Thus amended by L. 1892, ch. 676.]
Selections from the Transportation Corporations
Law Relating to Highways.
§ 43. Railroad, turnpike, plankroad and highway crossings.-
Whenever any line of pipe of any such corporation shall neces-
sarily cross any railroad, highway, turnpike or plankroad, such
line of pipe shall be made to cross under such railroad, highway,
turnpike, or plank-road and with the least injury there:o practi-
cable, and unless the right to cross the same shall be acquired
by agreement, compensation shall be ascertained and made to the
owners thereof, or to the public in case of highways, in the man-
ner prescribed in the condemnation law, but no exclusive title
or use shall be so acquired as against any railroad, turnpike or
plank-road corporation, nor as against the rights of the people of
this state in any public highway, but the rights acquired shall be
a common use of the lands in such manner as to be of the least
practical injury to such railroad, turnpike or plank-road, consist-
ent with the use thereof by such pipe-line corporation, nor shall
any such corporation take or use any lands, fixtures or erections
of any railroad corporation, or have the right to acquire by
condemnation the title or use, or right to run along or upon the
lands of any such corporation, except for the purpose of directly
Crossing the same when necessary.
$ 82. Powers.--Every such corporation shall have the following
additional powers:
1. To lay and maintain their pipes and hydrants for delivering
and distributing water in any street, highway or public place of
any city, town or village in which it has obtained the permit
required by section eighty of this article.
72 HIGHWAY MANUAL of NEw York.
2. To lay their water pipes in any streets or avenues or public
places of an adjoining city, town or village, to the city, town or
village where such permit has been obtained.
3. To cause such examinations and surveys for its proposed
water-works to be made as may be necessary to determine the
proper location thereof, and for such purpose by its officers, agents
or servants to enter upon any lands or waters in the city, town
or village where organized, or in any adjoining city, town or vil-
lage for the purpose of making such examinations or surveys, sub-
ject to liability for all damages done. [Thus amended by L. 1892,
chap. 617.]
§ 122. Agreement for use of highways.-The supervisor and
commissioner of highways, or a majority if there be more than one
of any town, may agree in writing with any such corporation for
the use of any part of a public highway therein required for the
construction of any such road, and the compensation to be paid
by the corporation for taking and using such highway for such
purpose on first obtaining consent of at least two-thirds of all the
owners of land bounded on or along such highway, which agree-
ment shall be filed and recorded in the town clerk’s Office of the
town. If such agreement can not be made the corporation may
require the right to take such highway for such purpose by con-
demnation. The compensation therefor shall be paid to the colm-
missioners of highways, to be expended by them in improving the
highways of the town.
Miscellaneous Laws Relating to HighWayS.
Laws 1878 – Chapter 377.
An Act in relation to the disposition and application of moneys
raised and collected in the towns of this State for highway and
bridge purposes.
Moneys to be paid to commissioners; supervisors to issue war-
rants to that effect; this act not to limit power to raise money
under laws 1869, chap. 855, $2.—Section 1. All moneys raised and
collected upon the taxable property of any of the towns of this
State, for highway and bridge purposes, shall be paid over by
town collectors of taxes to the commissioners of highways of the
towns in which said moneys are so raised and collected, and to no
other officer or person whatsoever. It shall be the duty of the
board of supervisors to issue warrants to the collectors of towns
requiring the paying over by them of all moneys raised and col-
lected for highway and bridge purposes, to the commissioners of
highways of towns; and it shall not be lawful for the board of
supervisors of any county to issue warrants to town collectors
directing them to pay over any moneys raised and collected upon
any town for highway and bridge purposes, to the village author-
ities of any incorporated village, situated wholly or partly in any
town. But nothing in this act shall prevent boards of super-
visors from raising money under section two of chapter eight hun-
dred and fifty-five of the laws of eighteen hundred and sixty-nine
and from issuing warrants to collect the necessary money to
repay the same. And said boards of supervisors may appoint a
commissioner or commissioners to spend and account for any
moneys raised for road or bridge purposes under said chapter
eight hundred and fifty-five of the laws of eighteen hundred and
sixty-nine, under such regulations as said boards shall deem
proper. [Thus amended by L. 1879, ch. 67.]
10
74 HIGHWAY MANUAL OF NEW YORK.
Duty of commissioners of highways — $ 2. It shall be the duty
of the commissioners of highways in the several towns in this
state to expend all moneys raised and collected in any town and
paid Over to such commissioners of highways, upon the highways
and bridges, situated in the town in which such moneys are
raised and collected, and not elsewhere, in such proportions as
they may deem just and proper.
Not to apply in certain cases.— $ 3. This act shall not apply to
incorporated villages constituting a separate road district, or to
special road districts of this state, now provided for by special
act.
[Laws of 1879, chapter 31, which authorized a return to former
system of working highways, was amended by Laws of 1889, chap-
ter 120, which was repealed by the highway law, although the
Original act remained unrepealed. As chapter 120 of Laws of
1889 is a substantial re-enactment of section 2 of the Laws of 1879,
chapter 31, the repeal of the amendatory act repealed the original
act. (See Statutory Construction Law, § 31.) Sections 1 and 3 of
Laws of 1879, chapter 31, have no force without section 2 and are
not, therefore, inserted here. The change in the system of work-
ing highways is now made in pursuance of sections 50 and 52 of
the highway law.]
Laws I869 — Chapter I31.
An Act for the erection and maintenance of watering troughs
in the public highways.
[Section 1 repealed by Highway Law.]
Abatement of toll on plank-roads for watering troughs.-
§ 2. The directors of the several plankroad and turnpike road com-
panies in this state shall annually abate three dollars from the
toll of any inhabitant, not an innkeeper, or all of it if in the aggre-
gate not exceeding that sum, who shall construct on his own land,
and keep in repair, a watering trough, beside the plankroad or
HIGHWAY MANUAL OF NEw York. 75
turnpike road as the case may be, well supplied with fresh water,
the surface of which shall be two or more feet above the level of
the ground, and easily accessible for horses with vehicles; but
the commissioners of highways of the towns respectively shall,
and they are hereby invested with full power and authority to
designate those necessary for the public convenience along said
plankroad or turnpike road, as the case may be, and no others
than those designated shall be allowed both such abatement
of toll and highway labor. [Added by L. 1872, ch. 274.]
Duty of commissioners in case of refusal of directors to abate
toll; penalty.— $ 3. In case the directors of any plankroad or
turnpike road company in this state shall refuse or neglect to
abate the toll as aforesaid, in compliance with the provisions of
the preceding section, any inhabitant having constructed a water-
ing trough in compliance therewith, may notify the commissioner
or commissioners of highways, as the case may be, of the town
in which the same had been erected, of such neglect or refusal on
the part of the directors aforesaid, whose duty it shall be, and
who are hereby invested with full power and authority to pro-
ceed, without delay, to an examination of said watering trough;
and if, upon a full examination of the same, the said commis-
sioner or commissioners, as the case may be, or a majority of
them, shall deem it necessary for the convenience of the public
that said watering trough ought to be maintained, he or they, as
the case may be, shall forthwith notify the said directors accord-
ingly, by serving a written notice on the president of the com-
pany, to that effect, in which the necessity of its maintenance
shall be clearly expressed; and if the said directors shall still
refuse or neglect to abate the toll as aforesaid, and shall demand
and take toll, on application for such abatement, in violation of
the provisions of the preceding section, for the space of thirty
days after the service of such notice, they shall be liable to a
penalty of twenty dollars, to be recovered in an action at law at
the suit of the person having constructed said watering trough.
[Added by L. 1872, ch. 274.]
76 HIGHWAY MANUAL OF NEW YORK.
Laws I871 — Chapter I71.
An Act in relation to assessment of highway labor in certain
CàSeS.
Assessors to make separate valuation of town and village or
city lands.-Section 1. In all cases where there is an incorpor-
ated village or city within the limits of any town, which is by
law a separate road district, and there shall be any real estate,
owned by any person or corporation, situated partly within the
limits of such village or city and partly without said village or
city, it shall be the duty of the assessors of such town, after
fixing the valuation of the whole of such real estate as now by
law required, to determine what proportion of such valuation is
on account of that part of said real estate lying without the limits
of said city or village, and designate the same upon their assess-
ment-list.
Highway commissioners to assess labor for part lying in towns
only.—$ 2. The valuation of the real estate lying without the
limits of any city or village, so fixed and determined by the
assessor, shall be the Valuation on which the commissioners of
highways of towns shall assess highway labor against the owner
or owners of such real estate; and in no case shall the complis-
sioners of highways assess any highway labor on property situated
within the limits of any incorporated city or village which is
by law a separate road district.
Laws 1883 — Chapter II.3.
An Act in relation to alterations of highways, streets or bridges
in incorporated villages.
Provision to ascertain damage.—Section 1. Whenever the grade
of any street, highway or bridge in any incorporated village in
this state shall be changed or altered so as to inter-
fere in any manner with any building or buildings situ-
ate thereon, or adjacent thereto, or the use thereof,
or shall injure or damage the real property adjoining
such highway so changed or altered, the owner or owners of such
HIGHWAY MANUAL of NEw YorK. 77
building or real estate may apply to the supreme court in the
judicial district in which such property is situated for the appoint-
ment of three commissioners to ascertain and determine the
amount of damage sustained thereby; due notice of Such applica-
tion shall be given to the person or persons having competent
authority to make such change or alteration.
General railroad law to apply.—$ 2. All the provisions of the
general railroad act relative to the appointment of commissioners,
their powers and duties, shall be applicable to the appointment
of, and the powers and duties of commissioners appointed in
pursuance of the provisions hereof; but it shall be the duty of
said commissioners in assessing and ascertaining the damages
sustained by property owners adjoining such street or highway
to take into consideration and to ascertain the value of any
benefits or advantages to the property in consequence of the alte-
ration of the grade; and in all cases the value of such benefits or
improvements shall be offset against and deducted from the dam-
ages; and no person or property owner shall be entitled to recover
any damages who shall in writing request or assent that the said
grade of any such street shall be changed or altered. [Thus
antended by L. 1884, ch. 281.]
Damages, etc., a public charge, etc.—$ 3. All damages ascer.
tained and determined under the provisions of this act, together
With the costs of such proceedings shall be a charge, when allow-
able, upon the village, town or other municipality chargeable with
the maintenance of the street, highway or bridge so altered or
changed; but no property owner or person instituting proceedings
to recover damages under the provisions of this act shall be enti-
tled to costs, unless the claim for such damages shall have first
been presented to and rejected by, or neglected to have been
adjusted for thirty days after presentation by the trustees or
other proper officers of said village, town or municipality, nor in
case such trustees or other proper officers shall have made an
offer to settle or compromise such claim, which offer is declined
by said property owner, unless he shall recover more than is so
78 HIGHwAY MANUAL OF NEW YORK.
offered; and in case he fails to recover any damages, or less than
offered, he shall be liable for the costs of such proceedings.
[Thus amended by L. 1884, ch. 281.] *
[I. 1884, ch. 281, § 4. This act shall not apply to or affect any
proceedings already taken and now pending, under the provisions
of the act hereby amended.]
Laws I884 — Chapter 344.
An Act concerning the collection of assessments for the opening
or improving of roads, streets or avenues in the several towns
of the state, in counties containing over three hundred thousand
inhabitants.
Assessments, how to be collected.—Section 1. All assessments
for the opening or improving of any road, street or avenue in
any town of this state, in a county containing over three hun-
dred thousand inhabitants, shall hereafter be collected by the
collector of taxes of each town, and the proper warrant for the
collection thereof shall be delivered to such collector, whose fees
for collection of such assessments shall be the same as he receives
by law for the collection of taxes, and shall be collected in the
same manner; but this act shall not apply to the towns of New
Utrecht and Gravesend, Kings county.
Repeal.—$ 2. All acts and parts of acts inconsistent with this
act are hereby repealed.
Revised Statutes, Part I, Title I.
§ 72. Every poor-house, alms-house, or other place provided by
any city, town or county, for the reception and support of the
poor, and all real and personal property whatever, belonging to
or connected with the same, shall be exempt from all assessment
and taxation, levied either by the state, or by any county, city,
town or village; and the keeper of every poor-house, alms-house,
or other place provided as aforesaid, shall be exempt from all
service in the militia, from serving on juries, and from all assess-
ments for labor on the highways.
EIIGHWAY MANUAL OF NEw YorK. 79
Laws I874, Chapter 446, relating to Utica State Hospital.
Exemption from jury services, etc.— $ 11. The resident
officers of the state lumatic asylum, and all attendants and assist-
ants actually employed therein during the time of such employ-
ment, shall be exempt from serving on juries, from all assessments
for labor on the highways, and in time of peace, from all service in
the militia; and the certificate of the superintendent shall be
evidence of the fact of such employment.
Laws I879, Chapter 280, relating to Binghamton State Hospital.
Exemption of resident officers and attendants.- $ 15. The
resident officers of the asylum, and all attendants and assistants
actually and regularly employed therein, shall. during the time
of such employment, be exempt from serving on juries, from all
assessments for labor on highways, and in time of peace, from
service in the militia; and the certificate of the superintendent
of the fact of such employment shall be sufficient evidence thereof.
Laws I862, Chapter 220, relating to State Asylum for Idiots.
Exemption of officers.- $ 16. The resident officers of the
asylum and all the teachers, attendants and assistants actually
employed therein, during the time for such employment shall be
exempt * * * from all assessments for labor on the high-
ways * * * ; and the certificate of the superintendent shall
be evidence of the fact of such employment.
Laws I890 — Chapter 332.
An Act to authorize the supervisor, justices of the peace and
town clerk of any town having a population of more than three
thousand, to license and regulate all public hacks, vehicles, ven-
ders, shows, concerts and public amusements in such town.
Section 1. The supervisor, justices of the peace and town clerk
of any town having a population as shown by the last federal or
state enumeration, of more than three thousand inhabitants resid-
ing outside of an incorporated city or village, are hereby author-
ized and empowered to license and regulate all public hacks,
80 HIGHWAY MANUAL OF NEW YORK.
Vehicles, Wenders, shows, concerts and public amusements in such
town, Outsid” of an incorporated city or village, and to fix the fee
to be paid for the persons so licensed to said officers, which
moneys so collected shall be paid over to the supervisor of such
town within thirty days after the receipt of the same, and the
said supervisor shall pay the same over to the commissioners of
highways of such town, to be applied to the necessary repairs of
the roads and highways of such town, after deducting the neces-
sary expenses for carrying out the provisions of this act.
[The remaining sections do not affect highways or highway
officers.]
Laws I890 — Chapter 29I.
An Act to authorize towns to raise additional money for highway
purposes and to prevent snow blockade of highways by the
substitution of wire for other fences along the same.
Section 1. It shall be lawful for the commissioner of highways
of any town in this state to apply in open town-meeting for a
vote authorizing such sum, not to exceed three hundred dollars in
any one year, to be raised, in addition to the sums now allowed by
law, as they may deem necessary for the purpose specified in the
third section of this act. The same notice shall be given by the
commissioners of their intention to apply for the raising of such
additional sum as is now required by law for the raising of money
for roads and bridges, above the amount of two hundred and
fifty dollars.
§ 2. If the town-meeting shall, by their votes, determine that a
sum shall be raised for the purpose specified in this act, the pro-
ceedings for certifying and levying, collecting and paying the
same shall be in all respects the same as now provided by law
for the raising and paying over of money for roads and bridges,
above the amount of two hundred and fifty dollars.
§ 3. The commissioners of highways shall expend the money
raised under the provisions of this act in the purchase of fence
wire, in the same manner as other supplies for highway purposes
*So in the original,
HIGHwAY MANUAL OF NEw YorF. 81
are by law required to be purchased, and no part of such money
shall be expended, except for the purchase of fence wire as afore-
said; and the said commissioners are hereby authorized to con-
tract with the owners of the lands lying along the highways of
their respective towns, at such points as are liable to snow block-
ade, for the removal of the fences now standing along the bounda-
ries of such highways, and the replacing of such fences with wire
fences. And they may contract to deliver to said landowners,
fence wire to be used in the construction of such fences, without
charge to said landowners, at the place of purchase, but they shall
not agree to pay any part of the cost of the removal or construc-
tion called for by said contracts, or to make any payment to
said landowners as a compensation for the construction of fences.
§ 4. The fences to be built under the provisions of this act,
shall be of four strands of wire with a substantial bar of wood at
the top; and the construction of said fences, and the size of said
top bars and of the posts and supports of said fences, and their
distance apart shall be such as said commissioners shall pre-
scribe. Whenever such fence or fences shall become so out of
repair as to be dangerous to animals passing along the highways,
it shall be the duty of the owner or owners of said fence or fences
to immediately repair or remove the same.
§ 5. Whenever the commissioner of highways of any town shall
contract for the removal of any fence, under the provisions of this
act, they shall file in the office of the town clerk of said town,
a description of that portion of the highway to which said contract
shall apply, and thereafter, it shall not be lawful for any person
to replace the fence so contracted to be removed, with any fence
liable to cause the drifting of snow.
§ 6. This act shall take effect immediately.
Laws I891 — Chapter 309.
An Act to authorize overseers of highways to acquire gravel for
highway purposes.
Section 1. The overseers of highways of any road district of the
state, with the consent of the commissioners of highways of the
town, and the approval of the town board, shall have power to
11
82 HIGHWAY MANUAL OF NEW YORK.
purchase of the owner of any gravel bed or pit within the town,
gravel for the purpose of grading, repairing or otherwise improv-
ing the highways of the town at a price per cubic yard approved
by said commissioners and town board. If such overseer can not
agree with any such owner for the purchase of such gravel, the
Overseer, with the consent of such commissioners and the
approval of such town board, shall have power to acquire by con-
demnation the right to take and use such gravel, provided, no
gravel shall be so condemned within one thousand feet of any
house or barn, or taken from any lawn, orchard or Vineyard, and
to remove the same from such bed or pit for the purpose of
grading, repairing or otherwise improving such highways, together
with the right of way to and from such bed or pit to be used for
the purpose of such removal. The right to use such gravel or to
take the same from any such bed or pit may be acquired under
this section for two or more or all of the road districts of the town,
in common; and if acquired for two or more or all of the districts,
the commissioners of highways, with the approval of the town
board, must make the purchase or acquire such right by con-
demnation. The amount agreed to be paid upon any such pur-
chase, and the amount adjudged to be paid upon any such con-
demnation shall be paid by the districts in which such gravel
shall be used, but the costs and expenses of the proceedings for
the condemnation incurred by the overseer, shall be a charge
upon the town, and shall be audited by the town board, and paid
the same as other town charges.
§ 2. If the town shall abandon for the period of three years any
right so acquired to use any gravel bed or pit or to take gravel
therefrom, or if the overseer of highways of any such district
wherein any such right shall have been so acquired, or the 3om-
missioners of highways of the town shall cease to use the same
for the purposes for which it was acquired, the right of the town
and of such overseer and commissioners thereto shall cease, and
the ownership thereof shall revert to and become wested in the
owner of such bed or pit at the time such right was acquired, or
his heirs or assigns.
§ 3. This act shall take effect immediately.
HIGH way MANUAL of NEw York. 83
Laws I893 — Chapter 419.
An Act to repeal chapter four hundred and ninety-three of the
laws of eighteen hundred and ninety-two, entitled “An act to
provide for the construction of highways and bridges upon
highways, running through two or more towns in the same
county,” and continuing certain proceedings heretofore coln-
menced under said act and authorizing the issue of bonds to
pay certain portion of the costs of said proceedings.
Section 1. Chapter four hundred and ninety-three of the laws of
eighteen hundred and ninety-two, entitled “An act to provide for
the construction of highways and bridges upon highways running
through two or more towns in the same county,” is hereby repealed,
but nothing herein shall affect any proceedings heretofore com-
menced under said act where, prior to the first day of March,
eighteen hundred and ninety-three, and the statement required by
section four of said act of the cost of the construction of the bridges
was presented to the board of supervisors of any county wherein
said proceedings were instituted, and such proceedings shall
continue until the completion thereof as in this act provided.
§ 2. The cost of the construction of any bridges provided in
said act may be paid by levy upon the taxable property of Said
county in the taxes levied for any one year, or by the issuing of
bonds for the cost and expense thereof as the board of supervisors
of any county may determine. Such bonds shall be of such denom-
ination, bear such interest and be payable at such time or times
as the board of supervisors may determine.
§ 3. This act shall take effect immediately.
Laws I893 — Chapter 607.
An Act to provide for the widening of highways.
Section 1. When any part of a highway in any town of this
state, not in an incorporated village or city, running between two
or more villages or cities, has, because of the wearing away
by a river or stream or any other natural cause, become narrower
than the width required by statute, and is dangerous to the users
\
84 HIGHWAY MANUAL OF NEW YORK.
of such highway, twelve or more resident taxpayers of such town
may present a petition to the county court of the county within
which such town is situated. The petition shall describe the
part of the highway proposed to be widened and state that such
highway has become lessened in width by the action of a river or
stream or other cause, that it is dangerous to the traveling pub-
lic, that the widening and improvement of such highway is
necessary for the public convenience and welfare, that the high-
way is an important leading road between two or more cities or
villages, that the cost of such widening and improvement would
exceed the sum of two thousand five hundred dollars and Would
be too burdensome on the town or towns otherwise liable there-
for. Such petition shall be verified by at least three of the peti-
tioners. On receipt of the petition the county court shall forth-
with appoint three commissioners who shall not be named by
any person interested in the proceedings and who shall be tax-
payers of such county, but who shall not reside in the town or
towns in which the highway, proposed to be widened and
improved, is situated.
§ 2. The commissioners shall take the constitutional oath of
office and appoint a time and place for a meeting to hear all
persons interested in the proposed widening of the highway.
They shall personally examine the part of the highway proposed
to be widened, hear any reasons for or against such widening and
ascertain the probable cost of the work. They shall have power
to issue subpenas, administer oaths and examine witnesses; they
shall keep the minutes of their proceedings and reduce to writing
all oral evidence given before them. They shall make duplicate
certificates of their decision, filing one in the town clerk's office of
the town in which the said highway is located, and the other,
with such minutes and evidence, in the county clerk’s office of
the county where the highway is located. Such commissioners
shall have the same power as to the assessment of damages caused
by the widening of such highway as commissioners appointed
under article four of the highway law for the discontinuance,
alteration or laying out of a highway, and as to such assessment
HIGHWAY MANUAL OF NEW YORK. 85
the same proceedings may be had for the confirmation, vacating
or modifying of such decision, as provided in and by said article
four of said highway law. The commissioners shall receive a
compensation of five dollars for each day necessarily spent in
the performance of their duties under this act, and the amount so
paid to the said commissioners shall be a charge upon the town
or towns in which the highway, proposed to be widened as afore-
said is located.
§ 3. If a majority of the commissioners shall determine that
the proposed widening of the highway is necessary and that the
cost thereof would be too burdensome for the town, exceeding
in probable cost two thousand five hundred dollars, they shall
notify the board of supervisors of the county of such decision.
The board of supervisors shall thereupon cause one-half of the
amount of the estimated cost to be raised by the county and
paid to the commissioners of highways of the town or towns in
which that part of the highway proposed to be widened as afore-
said is located, and said commissioners of highways shall apply
the sum so received by them towards the payment of the cost of
such widening. The balance of the expense shall be raised in
the manner provided by law, by the town or towns in which that
part of the highway proposed to be widened as aforesaid is
located.
§ 4. The said commissioners of highways shall construct such
widening of the highway according to plans and specifications
adopted by them and approved by the town board of their town.
The bills and expenses incurred in such work shall be audited by
the town board and paid by the commissioners of highways out
of moneys raised for such purpose as provided in the preceding
section.
§ 5. In case an action might lie in any court of this state against
the commissioners of highways of any town to compel such com-
missioners to widen a part of a highway, the width of which has
become less than that required by statute, or in case an action
has been brought against Such commissioners to compel them to
widen a part of a highway, the width of which has become less
86 HIGHWAY MANUAL OF NEW YORK.
than that required by statute, the presentation of a verified peti-
tion to the county court as provided for in section one of this act
shall prevent the commencing of any such action as afores.ajd and
cause such an action already commenced to cease, and shall be a
bar to a recovery on the part of the plaintiff of a judgment
against such commissioners of highways in any such action insti.
tuted or prosecuted to judgment after the passage of this act.
§ 6. This act shall take effect immediately.
Selections from the Penal Code Relating to
Highways.
Section 385. “Public nuisance”: defined.—A public nuisance is
a crime against the order and economy of the state, and consists
in unlawfully doing an act, or omitting to perform a duty, which
act or omission * * * * * unlawfully interferes with,
obstructs, or tends to obstruct, or renders dangerous for passage,
a lake, or a navigable river, bay, stream, canal or basin, or a pub-
lic park, square, street or highway.
§ 387. Maintaining a nuisance a misdemeanor: A per-
son, who commits or maintains a public nuisance, the punishment
for which is not specially prescribed, or who wilfully omits or
refuses to perform any legal duty relating to the removal of such
a public nuisance, is guilty of a misdemeanor.
§ 431. Noisome or unwholesome substances, etc., in high-
way: A person who deposits, leaves or keeps, on or near a
highway or route of public travel, either on the land or on the
water, any noisome or unwholesome substance, or establishes,
maintains or carries on, upon or near a public highway or route
of public travel, either on the land or on the water, any business,
trade or manufacture which is noisome or detrimental to public
health, is guilty of a misdemeanor, punishable by a fine of not
less than one hundred dollars, or by imprisonment not less than
three nor more than six months, or both.
§ 639. Injuring highway boundary, pier, sea wall, dock, lock,
buoy, land mark, mile board, pipe, main, sewer, machine, tele-
graph, etc.: A person who wilfully or maliciously displaces,
removes, injures or destroys,
88 HIGHWAY MANUAL OF NEW YORK.
|
1. A public highway or bridge, or a private way laid out by
authority of law, or a bridge upon such public or private Way; Or,
* * º $ $ $$. * * * • *
6. A mile-board, mile-stone, or guide-post erected upon a high-
Way, or any inscription upon the same;
$ * $$. º * $ * * $ * º
is punishable by imprisonment for not more than two years.
§ 640. Malicious injury and destruction of property: A person
Who wilfully, # * * • * * * * + + º
drives or leads along a public highway a wild and dangerous
animal, or a vehicle or engine propelled by steam, except upon a
railroad, along a public highway, or causes or directs such animal,
vehicle or engine to be so driven, led, or to be made to pass, unless
a person of mature age shall precede such animal vehicle or
engine by at least one-eighth of a mile, carrying a red light, if in
the night time, and gives warning to all persons whom he meets
traveling such highway of the approach of such animal, vehicle or
engine;
is punishable by imprisonment not exceeding six months or by
a fine not exceeding two hundred and fifty dollars, or both.
§ 666. Running horses on highway, a misdemeanor.— A person
driving any vehicle upon any plank-road, turnpike or public high-
way, who unjustifiably runs the horses drawing the same, or
causes, or permits, them to run, is guilty of a misdemeanor.
Selection
from the COde of Civil ProCedure,
Relating to Highways.
TITLE X.
ACTION OR SPECIAL PROCEEDING, RELATING TO AN ANIMAL STRAYING
Section 3082.
3083.
3084.
3085.
3086.
3087.
3088.
3089.
3090.
3091.
3092.
3093.
3094.
3095.
3096.
3097.
3098.
3099.
3100.
3101.
3102.
UPON THE HIGHWAY.
Action against person suffering animals to Stray.
Penalties to be recovered.
Certain officers to seize animals straying.
When private person may seize such animals.
Officer or person seizing to present petition.
Precept thereupon.
Id.; how served.
Proof of service of precept.
Answer; trial.
Decision in favor of petitioner; warrant to sell;
execution thereof.
Application of proceeds of sale.
Disposition of surplus.
Id.; when no claim made within a year.
Order upon claims for surplus; appeal therefrom.
Proceedings upon decision in favor of person
answering.
Demand of possession before trial. Proceedings
thereupon.
Id.; when animal wilfully set at large by third
person.
Action by owner in such a case.
Action by petitiºner and officer
Demand of possession after final order and before
sale. * &
Order upon demand of possession; appeal therefrom.
12
90 HIGHWAY MANUAL OF NEW YORK.
Section 3103. Id.; stay of proceedings.
3104. Appeal from final order.
3105. Id.; by claimant; stay of proceedings and delivery
of possession.
3106. Proceedings upon affirmance.
3107. Limitation of action for seizing animals.
3108. Certain actions can not be maintained.
3109. Where several animals are trespassing, damages are
entire. Proceedings in such cases.
31.10. Proceedings in other cases, where there are different
OWIOleI’S.
3111. Surplus, where there are different owners.
3112. When one action, etc., supersedes any other.
3113. Rights of officer when private person fails to
prosecute.
3114. Persons having a special property deemed owner.
3.115. Agent may act for his principal.
§ 3082. Action against person suffering animals to stray.—
Any person who suffers or permits one or more cattle, horses,
Colts, asses, mules, Swine, sheep, or goats, to run at
large, or to be herded or pastured, in a public street,
highway, park, or place, elsewhere than in a city, incurs thereby
the penalty or penalties specified in the next section; and any
resident of the town, or the officer to whom a fine or penalty is
to be paid for the benefit of the poor, as prescribed in section
2875 of this act, or the overseer or superintendent of the
poor of the town or district, in which one or more of those
animals are found so running at large, herded or pastured, may
maintain an action against him, in a justice’s court, held in that
town or district, to recover the penalty or penalties so incurred.
Where the action is brought by a private person, the justice must
pay the proceeds of an execution, issued upon a judgment therein
in favor of the plaintiff, after deducting the costs, to the officer,
who might have brought the action, as prescribed in this section,
to be applied by him to the support of the poor within his town
or district.
HIGHWAY MANUAL OF NEW YORK. 91
§ 3083. Penalties to be recovered.—If the plaintiff recovers
judgment, in an action brought as prescribed in the last section,
the justice must award to him the following sums, by way of
penalties, besides the costs of the action:
1. For each horse, colt, ass, mule, swine, bull, ox, cow, or calf,
five dollars.
2. For each sheep or goat, one dollar.
The entire amount of the penalties may be recovered in one
action, although it exceeds the sum, for which a justice can ren-
der a judgment in an ordinary action,
§ 3084. Certain officers to seize animals straying.—Where
one or more cattle, horses, colts, asses, mules, swine, sheep or
goats are found running at large, or being herded or pastured, in
a public street, highway, park, or place, elsewhere than in a city,
the overseer of highways of the road district, or, if they are so
found within an incorporated village, the street commissioner
thereof, having personal knowledge or being notified of the fact,
must immediately seize the animal or animals, and keep it or
them in his possession, until disposed of as prescribed in the fol-
lowing sections of this title.
§ 3085. When private person may seize such animals.- Any
person may seize one or more animals specified in the last section,
then running at large, or being herded or pastured, in a public
street, highway, park, or place, elsewhere than in a city, bordering
upon real property owned or occupied by him; or then trespassing
upon real property so owned or occupied, having entered there-
upon from such a public street, highway, park, or place. The per-
son making the seizure, must keep the animal or animals seized in
his possession, until disposed of as prescribed in the following
sections of this title.
§ 3086. Officer or person seizing to present petition.—An
officer or other person, who seizes an animal or animals, as pre-
scribed in either of the last two sections, must immediately file,
with a justice of the peace of the town in which the seizure was
92 HIGHWAY MANUAL OF NEW YORK.
made, a written petition, verified by his oath; setting forth the
facts, which bring the case within either of those sections; briefly
describing the animal or animals seized; stating either the name
of the owner, or that his name is not known to the petitioner, and
can not be ascertained by him with reasonable diligence; and
praying for a final order directing the sale of the animal or ani-
mals seized, and the application of the proceeds thereof, as pre-
scribed in this title. Where the petition alleges, that any animal
or animals seized, were then trespassing upon real property owned
or occupied by the petitioner, it must state the amount of the
damages, if any, which the petitioner has sustained thereby. In
that case, the decision of the justice, or, where the issues are tried
by a jury, the Verdict, must fix the amount of the damages.
§ 3087. Precept thereupon.—Upon the presentation of the
petition, the justice must issue a precept under his hand; directed
to the owner, if his name is stated in the petition, or if it is not
so stated, directed generally to all persons having any interest in
the animal or animals seized; briefly reciting the substance of the
petition; describing the animal or animals seized, and requiring
the person or persons, to whom the precept is directed, to show
cause before the justice, at a time and place specified therein, not
less than ten nor more than twenty days, after the issuing of the
precept, why the prayer of the petition should not be granted.
§ 3088. Id.; how served —The precept must be served upon the
person, to whom it is directed by his name, within the same time,
and in like manner as a summons is required to be served, as pre-
scribed in section 2910 of this act. Where it is directed generally to
all persons, having an interest in the animal or animals seized,
it may be served by a constable of the town, or by an elector
thereof, specially authorized so to do by a written indorsement
upon the precept, under the hand of the justice, by posting a
copy thereof in at least six public and conspicuous places in the
town where the seizure was made; one of which places must be
the nearest district school-house, or, if the seizure was made
HIGHway MANUAL OF NEW York. 93
W
within an incorporated village, having schools in charge of a
board of education, a building in which such a school is kept.
Each copy must be posted, within two days after the precept is
issued. Where the precept is directed to a person by his name,
and proof is made by affidavit, to the satisfaction of the justice,
that it cannot, with reasonable diligence, be personally served
upon that person, within the county, at least six days before the
return day thereof, the justice may, by a written order, direct that
service thereof be made, by posting copies thereof, at least five
days before the return day, as prescribed in this section; in which
case, service thereof may be made accordingly.
§ 3089. Proof of service of precept.—At the place where the
precept is returnable, and at the expiration of the time specified in
section 2893 of this act, the petitioner must, unless the precept is
directed to a person by his name, and he appears, furnish proof
of the service of the precept, as prescribed in the last section. If
it was served by a constable, either personally or by posting, his
written return upon the precept is sufficient proof of the facts
relating to the service, as stated therein. If it was served by a
private person, proof of service must be made by affidavit.
§ 3090. Answer; trial.—The owner, or a person having an inter-
est in any animal seized, may appear upon the return of the
precept, and thereby make himself a party to the special proceed-
ing. The person so appearing may, upon the return of the pre-
cept, file a written answer, subscribed by him or his attorney,
and verified by the oath of the person subscribing it, denying,
absolutely or upon information and belief, one or more material
allegations contained in the petition. His answer must also set
forth his interest in the animal or animals seized. The subsequent
proceedings must be the same as in an action in a justices' court,
wherein an issue of fact has been joined, except as otherwise
specially prescribed in this title.
§ 3091. Decision in favor of petitioner; warrant to sell; exe-
cution thereof—If no person appears and answers, or if the
decision of the justice, or the Verdict of the jury, where the issues
94. HIGHWAY MANUAL OF NEW YORK.
f
were tried by a jury, is in favor of the petitioner, the justice must
Imake a final Order, directing the sale of the animal or animals
seized, and the application of the proceeds thereof, as prescribed
in this title. Thereupon the justice must issue a warrant, under
his hand, directed generally to any constable of the county, com-
manding him to sell the animal or animals seized, at public
auction, for the best price which he can obtain therefor; and to
make return thereof to the justice, at a time and place therein
specified, not less than ten nor more than twenty days thereafter.
The Sale must be made upon the like notice, and in like manner,
as a sale of property, by virtue of an execution issued by a jus-
tice of the peace; and the constable must make return, as required
by the warrant, and must pay the proceeds of the sale to the
justice, deducting therefrom his fees, at the rate allowed by
law for the collection of such an execution.
§ 3092. Application of proceeds of sale.—The justice must
apply the proceeds of the sale as follows:
1. He must pay the costs of the petitioner, as taxed by the
justice at the same rates as the costs of an action brought before
him, including the justice's fees in such an action; and also the
fees for the service of the precept either personally or by posting,
at the rate allowed by law for personal service of a summons by
a constable. *
2. Out of the remainder of the proceeds, he may retain, to his
own use, a fee of one dollar, for each animal sold.
3. Out of the remainder of the proceeds, he must pay to the offi-
cer, or other person making the seizure, the following fees,
for the seizure of each animal seized and sold, to wit: One dollar
for each horse, colt, ass, or mule; fifty cents for each bull, ox,
cow, or calf; and twenty-five cents for each goat, sheep, or
swine; together with a reasonable compensation, fixed by him, .
for the care and keeping of each animal, from the time of the
seizure to the time of the sale; and, also, where any animal sold
was seized, while trespassing upon real property owned or
occupied by the petitioner, the damages sustained by the peti-
HIGHwAY MANUAL OF NEW YORK. 95
tioner in consequence thereof, as ascertained by the decision of
the justice, or the verdict of the jury, upon which the final order
was made.
4. Out of the remainder of the proceeds, he must pay to the
officer, to whom a fine or penalty is to be paid for the benefit
of the poor, as prescribed in section 2875 of this act, the following
penalties, to wit: Five dollars for each horse, colt, ass, mule, bull,
ox, calf, or swine, scized and sold; and one dollar for each sheep
or goat, seized and sold; which penalties must be received by the
officer, for the benefit of the poor of his town or district.
5. If any surplus remains, he must pay the same to the person
or persons entitled thereto, as prescribed in the following sections
of this title.
§ 3093. Disposition of surplus.—Any person may, within ten
day after the return of the warrant, file, with the justice, a written
claim to the surplus of the proceeds of the sale, or to any part
thereof. On the eleventh day after the return, or, if it is a Sun-
day or a public holiday, on the first day thereafter, which is nei-
ther Sunday nor a public holiday, the justice must proceed to
inquire into the claims so filed; and, for the purpose of deter-
mining them, he must hear the allegations and proofs of each
claimant; and he may issue subpoenas, as upon the trial of an
action. He may, upon the application of any claimant, and for
good cause shown, adjourn the hearing, from time to time, but not
more than thirty days in all. After hearing the allegations and
proofs of all the claimants, he must decide the claims, and enter
an order accordingly. If no claim is filed; or if the right to the
surplus money, or any part thereof, is not established, to the
satisfaction of the justice, as prescribed in this section; any
person, whose claim was not determined upon the hearing, may
file a claim thereto, at any time before the expiration of a year
from the return of the warrant; and, thereupon, the justice must
proceed, as prescribed in this section with respect to a claim filed
within the ten days.
96 HIGHWAY MANUAL OF NEW YORK.
§ 3094. Id.; when no claim made within a year.—If, at the
expiration of one year after the return of the warrant, any por.
tion of the surplus remains, a claim to which has not been estab-
lished to the satisfaction of the justice, pursuant to the provi-
sions of the last section, the justice must pay it, for the heneſit
of the poor to the officer to whom a fine or penalty is to be paid
for the benefit of the poor, as prescribed in section
2875 of this act; and, thereupon, all persons are forever
barred from any claim thereto. But if a claim, filed as
prescribed in the last section, remains undetermined at the expira-
tion of the year, the justice must determine it within ten days
thereafter; and, for that purpose, he must retain the surplus in
his hands until the determination.
§ 3095. Order upon claim for surplus ; appeal therefrom.—
An appeal from an order determining a claim, as prescribed in
the last two sections, may be taken to the county court, by a
claimant, within ten days after the making of the order, as from
a judgment of a justice in an action to recover a sum equal to the
claim; and the proceedings thereupon are the same, except that
an undertaking is not necessary for any purpose. Upon such an
appeal, each other claimant, whose interest is affected by the
order appealed from, must be made a respondent. If there is no
such claimant, the officer entitled to the surplus must be made
respondent; but costs can not be awarded against him, unless
he appears upon the appeal; in which case, the costs are in the
discretion of the appellate court. Where an appeal, taken as pre-
scribed in this section, is perfected, the county judge may, in his
discretion, make an order extending the time, within which pay-
ment of the surplus must be made, as prescribed in the last sec-
tion, and staying payment accordingly. Unless such an order
is made, and a copy thereof is served upon the justice, payment
must be made as prescribed in the last Section, notwithstanding
the appeal; and upon proof of the payment, the appeal must be
dismissed. Where an appeal is taken to the Supreme court, from
the determination of the county court, the county judge, or a
justice of the supreme court may make a like order, and with
like effect.
*
HIGHway MANUAL OF NEW YORK. - 97
§ 3096. Proceedings upon decision in favor of person answer-
ing.—If the decision of the justice, or the verdict of the jury,
where the issues are tried by jury, is in favor of the person
answering, it must fix the value of each animal seized. If the
justice or the jury find that the seizure was malicious, and with-
out probable cause, decision or the verdict must assess tile dam-
ages sustained by the person answering, by means of the seizure
and detention. The justice must thereupon make a final Order,
awarding to the person so answering, the return of the animal or
animals so seized, or the value thereof if a return can not be had;
together with his costs, at the rates allowed by law in an action
brought before him to recover a chattel; and, also, twice the sum
assessed as his damages, if any. Thereupon a warrant must be
issued by the justice to a constable, to the same effect, as an exe-
cution issued, in an action to recover a chattel, upon a judgment in
favor of the defendant, where the chattel has not been delivered
to him; and each provision of this chapter, relating to a judgment
and an execution in such a case, applies to a final order made,
and a warrant issued thereupon, as prescribed in this section.
§ 3097. Demand of possession before trial; proceedings there-
upon.—At any time after the precept is issued, and before the
commencement of the trial, the owner of any animal seized may
file with the justice a written demand of the possession thereof.
Thereupon he is entitled to the possession, upon complying with
the following terms:
1. He must pay to the justice, for the use of the petitioner,
the costs of the proceedings, to the time of filing the demand, as
prescribed in subdivision first of section 3092 of this act, and, also,
the sums payable on account of each animal, whereof possession
is so demanded, as prescribed in subdivision third of the same
section; which sums must be fixed by the justice, after hearing
the allegations and proofs of the parties.
2. He must also pay to the justice, a fee of one dollar for each
animal, whereof possession is so demanded.
13
98 HIGHWAY MANUAL of NEW YORK.
3. If the petitioner is an officer, to whom a fine or penalty is to
be paid for the benefit of the poor, as prescribed in section 2875
of this act, the claimant must also pay to the justice, for the peti-
tioner's use, the sum specified therein on account of each animal,
Whereof possession is so demanded.
4. The claimant must also prove, to the satisfaction of the
justice, by affidavit or other competent evidence, that he is the
owner of each animal whereof possession is so demanded. Each
person who has appeared must have notice of, and may oppose,
the claim.
§ 3098. Id.; when animal wilfully set at large by third person.—
But where, in a case specified in the last section, the person filing
a demand, presents therewith to the justice sufficient proof, by
affidavit or otherwise, that the running at large, herding, pastur-
ing, or trespassing, by reason whereof the animal or animals, of
which he demands possession, were seized, was caused by the
willful act, intended to effect that object, of a person other than
the owner; and also makes the proof specified in subdivision
fourth of that section; he is entitled to possession, pursuant to
his demand, upon paying to the petitioner, or to the justice for
his use, a reasonable sum, to be fixed by the justice, after hearing
the allegations and proofs of the parties, as compensation for the
care and keeping of the animal or animals, whereof possession is
so demanded, and without paying any other sum, specified in the
last section.
§ 3099. Action by owner in such a case.—The owner of an
animal seized in consequence of a willful act specified in the last
section, may recover, in an action against the person who com-
mitted it, all damages sustained by him, in consequence thereof,
including the sum paid in order to recover possession of the
animal, as prescribed in the last Section; and, in addition thereto,
the sum of twenty dollars for each animal seized.
§ 3100. Action by petitioner and by officer.—Where the posses.
sion of an animal has been delivered, as prescribed in the last
HIGHw AY MANUAL OF NEW YORK. 99
section but one, an action may also be maintained, by the peti-
tioner in the special proceeding before the justice, against the
person who committed the willful act, to recover, in addition to
all other damages sustained by the plaintiff in consequence of
the willful act, all sums, to which the plaintiff would have been
entitled out of the proceeds of the sale, as prescribed in section
3092 of this act, other than the compensation paid for the care
and keeping of the animal. In the like case, if the petitioner is a
private person, the officer, to whom a fine or penalty is to b3 paid
for the benefit of the poor, as prescribed in section 2875 of this
act, may maintain an action against the person, who committed
the willful act, to recover the penalties to which the plaintiff
would have been entitled, out of the proceeds of the sale, as pre-
scribed in that subdivision. Neither of the actions specified in
this or the last section is affected by the pendency of, or the
recovery of judgment in, either of the others.
§ 3101. Demand of possession after final order and before sale.—
A person, entitled to demand the possession of an animal,
as prescribed in section 3097 of this act, who did not
appear upon the return of the precept, or upon the trial,
may file, with the justice, a written demand of the posses.
sion, at any time after the final order, and not less than three
days before the time appointed for the sale; and, thereupon, he
is entitled to the possession, upon complying with the following
terms:
1. He must furnish, by affidavit or other competent evidence, a
sufficient excuse, to the satisfaction of the justice, for his failure
to appear.
2. He must, in all respects, comply with the provisions
of section 3097 of this act; except that it is neces-
sary for him to pay only one-half of the justice's fees, as
prescribed in subdivision second of that section; and one-half of
the fees payable to the petitioner, for the seizure of each animal,
as prescribed in subdivision third of section 3092 of this act.
.
tº
*
:
:
100 HIGHWAY MANUAL of NEw York.
§ 3102. Order upon demand of possession; appeal therefrom.—
Where a demand for the return of the possession of an animal is
filed, as prescribed in either of the last five sections, the justice
must, at the request of either party thereto, make, and enter in
his minutes, an order determining the same. An appeal from
Such an Order may be taken to the county court, by the person
making the demand, or by either party to the special proceeding,
at any time before the final order in the special proceeding is
made; and each person or party so entitled to appeal, must be
made a respondent upon an appeal taken by one of the others.
The appeal must be taken in like manner, as an appeal from a
judgment of the justice in an action to recover a chattel; and the
proceedings thereupon are the same, except as otherwise pre-
scribed in the next section.
§ 3103. Id. ; Stay of proceedings.--An appeal from an order,
specified in the last section, is not effectual for any purpose,
unless the appellant procures from the county judge an order,
directing a stay of the proceedings upon the petition, and a stay of
the execution of the order appealed from, and files it with the
justice, within the time allowed for the appeal. The order may
be granted or refused, in the discretion of the county judge, or
granted upon such terms, as to security or otherwise, as he thinks
proper; and it may be vacated or modified, either absolutely, or
unless further security is given, in his discretion. &
§ 3104. Appeal from final order.—Within ten days after a
final order upon a petition is made, as prescribed in this title,
an appeal therefrom may be taken by the petitioner, or by the
person answering, in like manner as an appeal from a judgment of
the justice in an action to recover a sum of money, equal to
the value of the animal or animals, and the proceedings there-
upon are the same, except as otherwise prescribed in the next
section.
§ 3105. Id.; By claimant; stay of proceedings and delivery of
possession.—An appeal from a final order, taken, as prescribed in
the last section, by the person answering, is not effectual for any
HIGHWAY MANUAL OF NEW YORK. 101
purpose, unless the appellant files, with the notice of appeal, an
Order of the county judge, or, if he is absent from the county, a
justice of the supreme court, reciting that the appeal has
been perfected, and that security has been given thereupon, as
prescribed in this section, and directing a stay of proceedings upon
the final order appealed from, and that the possession of the
animal or animals seized be delivered to the appellant. The
Order can be made, only where an undertaking is given by the
appellant, as required for the purpose of perfecting an appeal
from a judgment, and staying the execution thereof; and also an
undertaking, in the same or another instrument, to the effect that,
if the final order appealed from is affirmed, or if the appeal is
dismissed, the appellant will pay all sums which the justice
awards against him, upon the hearing, after the determination of
the appeal, as prescribed in the next section, not exceeding a
Sum specified therein; which must be, at least, twice the amount
of all the sums, which might be deducted from the
proceeds of the sale, as prescribed in section 3092 of
this act. The sum must be fixed, and the undertaking must be
approved, by the judge who grants the order. Upon filing the
Order with the justice, the appellant is forthwith entitled to the
possession of the animal or animals seized.
§ 3106. Proceedings upon affirmance.—If the final order
appealed from is affirmed, upon an appeal taken by the person
answering, the county Court must appoint a time and place, at
which the justice must fix the sums payable by the appellant,
pursuant to this undertaking. The justice may adjourn the
hearing to another place, and to another time, not exceeding three
days after the time so appointed. The justice must fix the sum
So payable, as if a Warrant for the sale of the animals seized had
been returned, and the proceeds thereof paid to him by the
constable, as prescribed in section 3092 of this act.
The undertaking upon the appeal enures to the bene-
fit of each officer, to whom any sum is payable, as prescribed in
that section; and with respect to any of those sums, the respond-
ent is a trustee for the Officer entitled thereto.
102 HIGHWAY MANUAL OF NEw York.
§ 3107. Limitation of action for seizing animals.- Where an
animal is seized, upon the ground that it was running at large,
or was being herded or pastured, or was trespassing, contrary to
the provisions of this title; and the officer or other person making
the seizure, immediately files his petition, and diligently prose-
cutes the same, as prescribed in this title; an action to recover
the animal so seized, or to recover damages for the seizure, or
for any act subsequent thereto, must be commenced within one
year after the cause of action accrues.
§ 3.108. Certain actions can not be maintained.— A person,
to whom the precept was directed by his name, and who was
personally served therewith, or a person who has appeared and
answered in the special proceeding, or demanded the return of
any animal seized, can not maintain an action against the officer
or other person seizing an animal, or a person acting by his com-
mand or in his aid, in a case specified in the last section. Put,
except as specified in this section, the owner of an animal seized
or detained, under color of any provision of this title, may main-
tain an action to recover the animal, or its value, or damages for
the seizure or detention, or for any unlawful act subsequent
thereto, if, in fact, the animal was not, at the time of the seizure,
running at large, or being herded or pastured, or trespassing, as
the case may be, as specified in the foregoing provisions of this
title.
§ 3109. Where several animals are trespassing damages are
entire. Proceedings in such cases.— For the purpose of deter-
mining the damages sustained by the petitioner, where two or
more animals are found simultaneously trespassing upon real
property, owned or occupied by him, all the damage done by all
the animals seized, is to be regarded as done by them jointly;
and the petitioner's remedy therefor is entire, and must be
enforced against all the animals, and the proceeds of the sale
thereof. Where different persons, who are known, own different
animals seized, the precept must be directed to all of them by
their names. If one or more of the Owners are known, and
HIGHWAY MANUAL OF NEW YORK. 103
the others are unknown, and can not be ascertained
with reasonable diligence, the precept must be directed
to each known owner, by his name, and, also generally,
to all persons having an interest in those animals, the
owners of which are unknown. In a case specified in this section,
a demand of the possession of an animal seized can not be made,
as prescribed in section 3097 or 3101 of this act, unless
it is made with respect to all the animals seized,
and by persons entitled to the possession of all of them. But a
separate demand may be made, as prescribed in section 3098 of this
act, by each owner of one or more animals seized; in which case, if
possession is delivered to him, as prescribed in that section, the
petitioner's remedy for his damages is the same, with respect to
the animal or animals, of which possession is not so delivered,
and against the proceeds of the sale thereof, as if those, whereof
possession is so delivered, had not been trespassing upon the
property.
§ 3110. Proceedings in other cases, where there are different
owners.--Where the petitioner does not allege, that the animals
seized were trespassing upon real property owned or occupied
by him, and different persons own different animals seized, a
separate special proceeding may be instituted, as prescribed in
this title, against each owner, or against any two or more owners,
with respect to the animals owned by him or them. Or the
proceedings may be taken against all the owners jointly; in
which case, each person to whom the precept is directed by his
name, and each person having an interest in an animal seized,
has the same right to demand the possession of the animal owned
by him, and the same right to answer separately, as if the special
proceeding was against him separately; and the final order may
be in favor of one or more of the persons so answering, with
respect to the animal or animals owned by him or them, and for his
or their costs; and against the remainder of the persons answer-
ing, or to whom the precept was directed, or for the sale of the
remainder of the animals in like manner, as if the former persons
104 HIGHWAY MANUAL OF NEW YORK,
had not answered, or had not been named in the precept. But
the person, first making a demand of the possession of any animal
seized, must pay all the costs to the time of the demand; and a
person, subsequently making a demand, is excused from the pay-
ment of any costs, except those which have accrued since the
former demand.
§ 3111. Surplus where there are different owners.--Where
proceedings are taken jointly against different persons, who own
different animals seized, as prescribed in either of the last two
Sections, the Surplus, remaining in the justice's hands, must be
distributed between them, in proportion to the value of the ani-
mals owned by each, to be determined by the justice. Any owner
may claim separately his proportion of the surplus; and sections
3093 and 3094 of this act apply to a claim made, and to the dispo-
sition of the surplus arising, as prescribed in this section.
§ 3112. When one action, etc., supersedes any other.—Where
two or more persons, or an officer and a private person, are author.
ized by this title, to bring an action, or to seize an animal, and to
take the proceedings prescribed in this title for the disposition
thereof, the commencement of an action, or the seizure of the ani-
mal of either of them, supersedes the right of any of the others
to bring such an action, or to make such a seizure, with respect
to the animal seized, or in question in the action. But the jus-
tice may, in his discretion, allow an officer or other person who is
interested in the recovery, or in the application of the proceeds
of the sale, to appear in the action or special proceeding, for the
purpose of protecting his interest, and take such part of the pro-
ceedings therein, as the justice thinks proper.
§ 3113. Rights of officer when private person fails to prose-
cute.—Where a seizure is made by a private person, as prescribed
in this title, and the possession of an animal seized is abandoned
by him, without filing a petition; or where an action, brought by
a private person, as prescribed in this title, is settled or discon-
tinued by the plaintiff; the officer, to whom a penalty is payable,
{}
HIGHWAY MANUAL OF NEW YORK. 105
as prescribed in section 3083 of this act, or in subdivision fourth
of section 3092 of this act, may, unless he has assented to the aban-
donment, settlement, or discontinuance, maintain in an action
against the owner of the animal in question, to recover the penalty
so payable to him; and upon proof of the facts, which would have
entitled the plaintiff in the former action, or the petitioner in the
special proceeding, to recover, he is entitled to judgment
accordingly.
§ 3114. Person having aspecial property deemed owner.—When
a person is, at the time of the seizure, entitled to the possession
of an animal, as against the general owner thereof, by virtue of
a special property therein, he is deemed, for all the purposes of
this title, the owner thereof.
§ 3115. Agent may act for his principal.—The duly authorized
agent of the owner or person entitled to the possession of an
animal, as specified in the last section, may, in his own name,
answer, make any demand, or take any other proceeding, which
the owner or person so entitled may take, as prescribed in this
title. wº
14
P A R T II.
Explanatory Analysis of the Statutes
With FOrms.
C H A P T E R I.
The Maintenance of Highways.
I. Systems of working.
II. Assessment of labor.
III. Credits and rebates.
IV. Purchase of tools and machines.
V. Notice to perform labor.
VI. Commutation.
VII. Teams; substitutes.
VIII. Acquisition of gravel.
IX. Penalties for refusing to work.
X. Unperformed labor.
XI. Opening obstructed highways.
XII. Rights in connection with working the highways.
XIII. Extraordinary repairs.
YTV. Miscellaneous matters.
I. SYSTEMS OF WoRKING.
Sections 1. Labor system.
2. Money system.
3. County system.
4. Change of system.
The laws of the State provide for three systems of working the
highways, which may be termed, respectively, the labor system,
the money system, and the county system.
§1. Labor system.—The labor system had its origin in the
early history of social communities when the town was merely
a collection of persons for mutual protection and benefit and
before a complete system of municipal government had been
110 HIGHwa Y MANUAL OF NEw York.
devised or an intelligent distribution of the burdens of the munici-
pality adopted. The persons who chanced to be collected in 2.
particular locality, lived for themselves without reference to their
.neighbors. The labors incident to maintaining the public institu-
tions in which they had a common interest were few, and were
performed by the inhabitants in a body, without a delegation of
particular duties to designated officers. When the roads of the
locality were to be repaired, all turned in and took a hand. This
primitive System of maintaining the highways, with some modifi-
cations, became a part of the law of the State and is still the
system generally in vogue.
In the labor system, the highways are maintained under the
supervision of overseers, or pathmasters, as they are frequently
termed, by the actual labor of the individual inhabitants and cor-
porations, or their agents, residing within the district, on whom
an assessment of a certain number of days of labor Das been
made. The law provides a deviation from the labor system, pure
and simple, by allowing a commutation or payment of money
instead of labor, at a certain rate for each day's labor assessed.
The money So raised from commutation is to be expended by the
overseer in repairing the highways of his district.
The labor system of working the highways was perhaps well
enough in the early history of the country, when the population
Was scattered, money scarce and good roads of secondary import-
ance; but with the increase of population, the interdependence of
communities, the great increase in travel, good roads became a
necessity, and the labor system suggests itself to an intelligent
mind as impracticable. When a single town is often divided into
as many as sixty road districts, each district working its roads
under a different supervision and perhaps by different methods, it
would seem to be impossible to obtain uniformly good roads in
any portion of the State. There is little satisfaction or encourage-
ment for a single district, perhaps a mile in extent, to maintain
its highways in first-class condition, if neighboring districts are not
equally diligent and attentive. In modern times the inhabitants
of the district do not confine their travel to the limits of the dis-
trict in which they reside. It is not only desirable that roads
HIGH way MANUAL of NEw YoFK. 111
should be uniform, but that they should be uniformly good. This
it would seem impossible to attain where the roads of a sin-
gle town are under sixty different managements and where the
labor is performed by individuals desirous chiefly of putting
in the required number of days. The labor of one man who
thoroughly understands his business is equivalent to the labor of
a dozen to whom the occupation is only occasional,
§2. Money system.—Under the money system of working the
highways, the town is the unit. The expense of constructing and
repairing the highways of the town is raised by a tax assessed in
the same manner as other town taxes are assessed, on the inhabi-
tants, corporations and property, which would otherwise be
assessable for highway labor.
The necessary sum is determined by the town board and com-
missioners of highways at an amount equal to at least half the
Value at commutation rates of the highway labor required to be
assessed under the labor system and is certified to the board of
supervisors, the same as any other town charge. Thus under the
labor system the number of days assessed must be equal to at least
three times the number of taxable inhabitants of the town, say 500
days. Then under the money system the amount determined on
must be not less than $250. Property in an incorporated village,
which is a separate road district, is exempt from taxation for work-
ing the town highways under the money system. The assessors
of the town are to place in a separate column of the assessment
roll the property of the town which is in such village, and are also
to place upon such roll the names of persons not residing in such
village liable to a poll-tax. By persons liable to poll-tax is meant
persons liable to a personal assessment for highway labor. The
board of supervisors must levy a poll-tax of one dollar on each of
such persons, to be applied to the maintenance of the highways of
the town.
The money is expended under the direction of the highway com-
missioners of the town, and the work is performed in the manner
which they deem most economical and efficient. They may cause
the work to be done by employes under their direct supervision;
112 HIGHWAY MANUAL OF NEW YORK.
they may appoint agents in different portions of the town to
supervise the work; they may retain the district system and the
appointment of district overseers; or they may cause the work to
be done by contract. (H. L., § 53, p. 19.)
§3. County system.–In the county system, certain roads of the
county, so far as practicable market roads outside of cities and
Villages, may be designated by the board of supervisors as county
roads and removed from the jurisdiction of the highway officers
of the towns, while the other roads of a town containing any
portion of a county road are required to be worked under the
money system. The expense of maintaining the roads is a county
charge, appropriated annually by the board of Supervisors, and
the money raised is to be applied, so far as practicable, in such
manner that the amount expended in each town shall be propor-
tionate to the equalized value of the real property of the town.
The board may issue the bonds of the county at not less than par
for the construction or maintenance of such roads, at not to
exceed five per cent interest and payable within twenty years.
The county roads are to be under the supervision of a salaried
engineer appointed by the board of supervisors for a term of
three years.
The county road system is occasioned by the interdependence of
communities and the general desire for uniformly good roads. By
the selection of the leading market roads of the county and their
improvement under the supervision of a skillful and experienced
engineer, to whom road construction has been a matter of special
study, observation and experience, the larger community of the
county is enabled to have a few continuous roadways, uniformly
good, the condition of which is not dependent on town or district
lines. (H. L., §§ 54-58, p. 19.)
§4. Change of system.—A town having either the labor or
money system may change its system of working the highways
to the other system by vote at an annual meeting, on the written
request of twenty-five electors of the town, but no person shall
sign such request or vote at such meeting who resides within an
HIGHWAY MANUAL OF NEw York. 113
incorporated village or city. The request may be in the follow-
ing form:
To O P, Town Clerk of the Town of.......................... , in the County
of . . . . . . . . . . . . . . .
We, the undersigned, taxpayers of said town of... . . . . . . . . . . . . . . . ......... 2
hereby request that a vote by ballot be taken at the next annual town meeting
in said town by the electors thereof entitled to vote thereon, on the question of
changing the system of taxation for working the highways in said town, pur-
suant to sections 50, 51, 52 and 53 of the highway law.
Dated this. . . . . . day of . . . . . . . . . . . . . . 18. . . .
(Taxpayers sign here.)
When such change has been adopted it takes effect at the time
of the next annual meeting of the board of supervisors and until
that time the former system is still in force. (H. L., §§ 49-53, p. 18.)
II. AsSESSMENT OF LABOR.
Section 5. Creation of districts; appointment of overseers.
6. Lists of persons liable to labor.
7. Meeting of commissioners.
8. Lists of non-resident lands.
9. Persons liable to personal assessment.
10. How assessment is made.
11. Assessments to occupants.
12. Credit to persons living on private road.
13. Reassessments.
14. Copies of lists for overseers.
15. Assessment to work highways laid out for a year
but not yet opened or worked.
16. Non-resident appeals.
17. Additional assessment by overseers.
§ 5. Creation of districts;appointmentofoverseers.--Where the
highways of a town are worked by the labor system, the highway
commissioners from time to time, but not more than once a year,
15
114 HIGHWAY MANUAL OF NEW YORK,
must divide the town into convenient highway districts, and file a
written statement of such division in the office of the town clerk,
which the town clerk must enter in the town book at least ten
days before an annual town meeting. (H. L., § 4, p. 4.) The
statement may be in the following form:
The undersigned, commissioners of highways of the town of . . . . . . . . . . . . . e
in the county of. . . . . . . . . . . . . . hereby divide the highways of said town into
districts as follows:
District No. 1 shall comprise (here insert the description thereof, and in like
manner of all the other districts).
And we hereby assign to each of said districts the inhabitants and corpora-
tions, respectively, residing or located therein and liable to work on highways.
(Or if any person or corporation is assigned to a highway district of which he or
it is not an inhabitant, or located, but is liable to be assessed for highway labor
therein, it must be so stated.)
Dated this....day of . . . . . . . . . . . . . . , 18. . . .
A B,
C D,
E F,
Commissioners of Highways.
Within one week after each annual town meeting, the commis-
sioners of highways are to designate a resident of each district to
act as overseer of highways therein, by filing with the town clerk a
written appointment, which may be in the following form:
The undersigned, commissioners of highways of the town of... . . . . . . . . . . . 3.
in the county of . . . . . . . . . . . . . . , hereby appoint overseers of the highways of
said town for the ensuing year, as follows:
District No. 1.-J. K.
District No. 2.-L. M.
District, No. 3.-T W
Dated this....day of. . . . . . . . . . . . . . , 18, ...
A B,
C D,
E F,
Commissioners of Highways.
Highway MANUAL of NEw York. 115
The town clerk should immediately mail a notice to each person
designated as overseer, which may be in the following form:
To I, M.
Please take notice that you have been appointed by the commissioner of
highways, overseer in highway district No. . . . in the town of . . . . . . . . , county
of. . . . . . . . . . . . . . , N. Y., for the ensuing year; and you are hereby required to
report to the town clerk, within sixteen days after receiving this notice, the
names of all the taxable inhabitants and corporations in your highway district
liable to be assessed for highway labor therein.
Dated this....day of... . . . . . . . . . . . . . , 18. . . .
O P,
Town Clerk.
§6. Lists of persons liable to labor.--The overseer, or pathmaster,
as he is frequently termed, within sixteen days after his appoint-
ment is to make out a list of the inhabitants in his district
liable to work on the highways and deliver such iist to the town
clerk, who must deliver it to the commissioners of highways of
the town. (H. L., § 31, p. 13.)
The list may be in the following form:
I, L M, overseer of highway district No. ..., of the town of... . . . . . . . . . . . 3.
do hereby certify that the following is a true and correct list of all the inhabi
tants and corporations who are liable to work on the highways in said district:

NAMES. NAMES.
G. H. O P.
J. K. R. S.
Dated this....day of... . . . . . . . . . . , 18. . .
L M,
Overseer of Highway District No.....
§ 7. Meeting of the commissioners.-The commissioners of
highways are to meet within eighteen days after the
annual town meeting at the town clerk's office, and at such meet-
ing, or at a subsequent meeting, it is their duty to assess and
apportion the highway labor of the town. At such first meeting
116 HIGHWAY MANUAL of NEW Yorf.
they are to receive the lists of the overseers, if filed with the town
clerk, and if not, they can receive them at any subsequent meeting,
which they are authorized to hold at any time or place. (H. L.,
§ 30, p. 13.)
§8. Lists of non-resident lands,-Before making an assessment
of highway labor, the commissioners must make out a list of the
unoccupied lots of land in the town, describing them the same as
an assessor and setting the value opposite to the description, in the
following form:
The following is a list and statement of the contents of all lots, pieces or par-
cels of land within the town of . . . . . . . . . . . . . . , in the county Of... . . . . . . . . . . . . 5
owned by non-residents therein, made by the undersigned, commissioners of
highways of said town:


+s 5 & Ǻ
O C Kl) Gl)
; : *- § 4 sº tº bſ | tº $.
NAME} OF TRACT OR PATENT. # . #; Township. # ; # § Yºº-
£ U2 ſº
5 p
ź & | # 2, 2.
Dated this....day of . . . . . . . . . . . . . . . . , 18. . . .
A B,
C D,
E F,
Commissioners of Highways.
The value must be the same as that stated in the last assess-
ment-roll of the town, or if the lot was not separately valued, a
value proportionate to the valuation of the whole tract of which
such lot is a part. In making such assessment the commissioners
can use the assessment-roll of the town deposited with the town
clerk. (H. L., § 32, p. 13.)
$9. Persons liable to personal assessments.-Every person or
corporation owning or occupying land within the town and every
male inhabitant above the age of twenty-one years must be
assessed personally to work on the highway for at least one day.
HIGHWAY MANUAL OF NEW YORK. 117
Honorably discharged soldiers and sailors who lost an arm or a
leg in the service of the United States during the late war or who
are unable to perform manual labor by reason of injuries received
or disabilities incurred in such service, persons seventy years of
age, clergymen and priests of every denomination, paupers, idiots,
lunatics, infants and women are not liable to this individual
assessment for highway labor, but the property of such persons,
unless otherwise exempt from taxation, is liable to assessiment the
same as the property of other persons. Real property of non-
residents is assessed the same as property of 1:esidents, but the
non-resident is not liable to an individual or per capita assess-
ment. (H. L., § 33, p. 13.)
$10. Howassessmentis made.—The commissioners must deter.
mine the entire number of days’ labor which, in their judgment,
will be sufficient to properly work the highways of the town, which
shall be at least three times the number of the taxable inhabitants
of the town. They must assess each male inhabitant liable to
taxation at least one day, and the remaining days, they must
assess on the property within the town of individuals, corpora-
tions liable to assessment within the town as appears from the
last assessment-roll and non-residents. The commissioners have
no discretion in determining what corporations are to be assessed,
but they must follow the last town assessment-roll. (People ex
rel. Hudson R. R. R. Co. v. Pierce, 31 Barb. 138.) The real prop-
erty of corporations should be assessed at its value for corporate
purposes. (People, etc., v. Fredericks, 48 Barb. 173.) Unoccupied
lands owned by a non-resident must be assessed to the non-resi-
dent, but if occupied, they are to be assessed to the occupant.
Personal property is to be assessed in the district where the
owner resides, and real property in the district where the real
property is situated; but the property of a corporation may be
assessed in any district the same as if the corporation was a
resident of the district. Thus the buildings and plant of a cor-
poration may be in one district, but the commissioners may assess
the labor of the corporation in any other district or in several
districts. Real property within a city or village which is a
118 HIGHwa Y MANUAL of NEw YorF.
separate road district and the personal property of the inhabitants
of such city or village is, of course, not assessable for highway
labor of the town. Real property partly within and partly with-
out such a city or village can only be assessed for the portion
without such city or village, on the basis of valuation fixed by
the assessors of the town.
If the assessors of the town have omitted to assess any inhabi-
tant, corporation or property therein, the commissioners of high-
Ways must assess the same and apportion highway labor thereto.
The commissioners must affix to the name of each assessalile
person and Corporation in the lists furnished by the overseers,
and to the description of each tract of non-resident land in the
list prepared by them, the number of days such person or tract
is assessed, subscribe such lists and file them with the town clerk.
(H. L., § 33, L. 1871, ch. 171, pp. 13, 76.)
The road warrant may be in the following form:
To. . . . . . . . . . . , Overseer of Highways in District No..... , of the Town
of. . . . . . . . . . . . . . , which begins at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * e s tº e s e e g º g º e e g g g g g e. e.
e e s e º 'º e º e º 'º e s e e º e s e s s e e s e < * * * * * * * * * * * * * * * * * * * * * * * * e ºs e e º 'º º e º e s p s e s e º e s e º º
You will cause the Several persons and corporations whose names are here-
unto annexed, to labor on the highways in your district the number of days
set opposite their names, or commute therefor at the rate of one dollar for each
day; two-thirds to be performed by the first day of ................ next, and
the residue by the first day of . . . . . . . . . . . . . . . . next. You are also required
to cause all noxious weeds on the highways in your district to be cut down
between the fifteenth day of June and the first day of July, and again
between the fifteenth day of August and the first day of September; and also
to cause the loose stones lying on the beaten track of the road to be removed at
least once in each month from the first day of April to the first day of Decem-
ber. Should any name in your district be omitted, or new inhabitants move
in, you are to annex their names, and to assess them in proportion to their real
and personal estate. And whenever the labor in your ward or district has
been worked out, commuted for, or returned to the supervisor, and the high-
ways are obstructed by snow, or otherwise, and written notice has been given
to you by any two or more inhabitants of the town liable to the payment of
highway tax, requesting the remova, of sucíl obstruction, you are required to
immediately call upon all persons liable to highway tax in your district to
assist in removing such obstructions, and such labor, so called for by you, shall
be assessed upon those liable to perform the same, in proportion to their original
assessments. Also, to deliver to the supervisor of said town, on or before the
first day of October next, a list of all resident landholders residing in your dis-
HIGHwAY MANUAL OF NEw York. 119
trict, who have not worked out their highway assessment or commuted for the
Same, and a list of all the lands of non-residents, and of persons unknown,
which are taxed on your list, on which the labor assessed by the commissioners
or added by you, according to law, has not been performed or commuted for,
and the number of days unpaid for by each, charging for the same at the rate
of one dollar and fifty cents per day, which list shall be accompanied by your
affidavit, duly certified, that you have given the notice required by sections 60
and 61 of the highway law, and that the labor for which such residents and
such land is returned has not been performed or commuted. You are to make
return to one of the commissioners of highways on the second Tuesday meat
preceding the annual town meeting in your town, within the year for which you
are appointed, verified by your oath containing : First. The names of all persons
assessed to work on the highways in the district of which you are overseer.
Second. The names of all those who have actually worked on the highways with
thenumber of days they have so worked. Third. The names of all those who have
beenfined, and the sums in which they have been fined. Fourth. The names of all
those who have commuted, and the manner in which the moneys arising from
fines and commutations have been expended by you. Fifth. A list of all persons
whose names you have returned to the supervisor as having neglected or
refused to work out their highway assessments, with the number of days and
amount of tax so returned for each person, and a list of all lands which you
have returned to the Supervisor for non-payment of taxes, and the amount of
tax on each tract of land so returned — according to the statute in such case
made and provided. And you are to pay over to said commissioners according
to law, all moneys paid to you for commutation by all moneyed or stock cor-
porations hereby assessed upon it or them for highway labor, and all moneys
remaining in your hands, arising from fines and commutations. The law
imposes a penalty of ten dollars on the overseers for neglect or refusal to make
such return, or to pay over said moneys, which fine the commissioners are
bound to enforce in every case of default.
Dated this . . . . day of. . . . . . . . . . . . . . . . , 18 . . .
A B,
C D,
E F,
Commissioners of Highways.
Days Amount
NAMES.
Days
assessed.
Days
worked.
commuted.
of fines.
a s g g s e s a g g g g º e e s a s a s e a tº a s a tº e º e º ſº e º e s e º 'º e º 'º " - " " * *
* * * * * * * * * * * * * * e s e e s s a e s e s e s e s p * * * * * * * * * * * * * * * * * *
a « s is e s a c e g º is e e s e º e s s s a e º e s e e s is a tº e s a e s s a s e s º º ºs e º a
• * * * * * * * * * * * * * * * * * * * s tº e s a e º 'º e º e º a w tº e º º e º e a s a e º 'º a
tº e º e g g g g tº tº g e
* * * * * * * * * * * *
tº º e º ºs ºn tº ºr tº ſº tº º
tº e s tº e º ſº e º 'º &
tº ſº º $ tº $ ºn tº $ tº º
• e º e g º is e i t e s
e e º tº ſº tº e º & & © 2
e e º & E * * * * * * *
e is º gº is a tº e º ºs e º º º
# * * * * * * * * * * * * *
tº e º 'º º & s a tº ºn e º 'º e
tº $ tº t e º is tº e º tº ſº tº tº
* * * * * * * * * * * *
* is a º ºs e º is g º e e
* e < * * * * * * * * *
120 HIGHw AY MANUAL OF NEW YORK.
§ 11. Assessments to occupants.-If land is assessed to an
occupant who does not own it, the commissioners shall indicate in
their lists the number of days charged on such land separately
from the number assessed to the occupant as an individual.
Where land is assessed to an occupant the owner of the land can
not be assessed on account of the same land. (H. L., § 38, p. 15.)
§12. Credit to persons living on private road.—Persons who live
on a private road, if they work the road, shall be credited on their
town assessment as much as the commissioners deem necessary
to work the private road. But the commissioners may annex the
road to a highway district and it is then worked the same as
other highways of the district. (H. L., § 37, p. 15.)
§ 13. Reassessments.-If it appears from the annual return of an
overseer that labor assessed to a person or corporation, other
than a non-resident, has not been performed, commuted for or
otherwise satisfied, the commissioners must add to the annual
assessment of such person or corporation the number of days'
labor remaining unsatisfied. (H. L., § 40, p. 16.)
$14. Copies of lists for overseers, The town clerk must make
copies of the lists of persons and corporations liable to highway
labor, which must be subscribed by the commissioners of high-
ways and delivered to the overseers of the several districts where
the labor is assessed.
If the names of persons or corporations are omitted from such
list, or if persons move into the district, the overseer may add the
the names of such persons or corporations to the list, and assess
them for highway labor within the district the same as other
persons are assessed on such list. If such assessment by an
overseer is thought unfair an appeal may be taken to the commis-
sioners of highways of the town. (H. L., §§ 34, 35, p. 15.)
§ 15. Assessment to work highways laid out for a year but not
yet opened or worked.—If a highway has been laid out and title
acquired to the land, for a year, but it has not yet been opened
HIGHwAY MANUAL OF NEW York. - 121
or worked, any inhabitant or corporation of the town may give
notice to the commissioners of highways that they desire to apply
the whole or any part of their labor to the working of such high-
way. The law does not require that the notice be written, but it
is much better that it should be. Within ten days after receiving
such notice the highway commissioners must assign such persons
or corporations to the district in which such highway is situated,
and cause such highway to be worked and put in good order
within one year, under the direction of an overseer to be appointed
by the commissioners. Although not required by the law, such
assignment should be in writing and filed in the town clerk's
office. If the labor assessed to the persons and corporations for
the year is insufficient to put the road in good order, they may
anticipate the labor which would be assessed against them for
not to exceed three years. Not over half of the labor assessed in
any one district of the town can be applied in improving a high-
way not in the district. (H. L., § 33, subd. 5, p. 14.)
§ 16. Non-residentappeals.-A non-resident or his agent, within
thirty days after the assessment of unoccupied lands owned by
him, may appeal to the county judge, by filing with the judge, a
written appeal in the nature of a complaint, which may be in the
following form:
COUNTY OF. . . . . . . . . . . . . . . . . . }ss.
TOWN OF ... . . . . . . . . . . . . . . º
LM, a non-resident owner of lands in said town, considering (or T W.,
agent of LM, a non-resident owner of lands in said town, who considers) him-
Self aggrieved in the assessment for highway labor by the commissioners of
highways of said town, upon the following described lands, to wit: (Here
describe them as in the list made by the commissioners) does hereby appeal
from the assessment of said commissioners to the county judge of said county.
Dated this....day Of... . . . . . . . , 18..
L M.
At the time of the filing of such appeal, the county judge
should fix a time for hearing the appeal, and the number of days'
notice to be given to the commissioners. There is no provision
of the statute fixing the number of days' notice to be given, but
the ordinary eight days' notice of motion, would be proper. A
Copy of the appeal and a notice of the time of the hearing should
16
122 HIGHWAY MANUAL OF NEW YORK.
be served on the commissioners, as prescribed by the court, which
may be in the following form:
To A B, C D, E F, commissioners of highways of the town of . . . . . . . . . . . . . >
you are hereby notified, that considering myself aggrieved by your assess-
ment for highway labor of the land owned by me in said town, I have this day
appealed to the county judge of the county of . . . . . . . . . . , who will on the, ...
day of . . . . . . . . . . . , at . . . . o'clock, in the....noon at . . . . . . . . . , in the village of
& © tº tº 4 ſº a tº º º , hear and decide on said appeal.
Dated this. ...day of... . . . . . , 18...
L. M.
The decision of the judge must be rendered within twenty days
after hearing the appeal and is final and conclusive. (H. L., § 36,
p. 15.)
§ 17. Additional assessment by overseers.--If an overseer finds
that the labor assessed for his district by the commissioners is not
enough to properly work the highways, he may make an additional
assessment on the actual residents of the district, in the same
proportion as a former assessment, but the whole number of
additional days can not exceed one-third of the number assessed
by the commissioners. The work must be performed or commuted
for the same as if assessed by the commissioners. (H. L., § 42,
p. 16.) The new assessment by the overseers may be in the fol-
lowing form, and should be filed in the office of the town clerk:
The amount of labor assessed on the inhabitants of highway district No. ...,
town of . . . . . . . . . . , being deemed by me, the undersigned overseer of highways
in said district, insufficient to keep the highways therein in repair, I do there-
fore, pursuant to section 42 of the highway law, make a further assessment as
follows:

NAMES. Days. NAMES. Days.
J D. T W.
R S. B R.
Dated this....day Of... . . . . . . . , 18..
L M,
Overseer of Highways, District No. . . . .
HIGHWAY MANUAL OF NEW YORK. 123.
III. CREDITS AND REBATES.
Section 18. Deduction by tenant.
19. Rebates.
20. For shade trees.
21. For sidewalks.
22. For watering-troughs.
23. For the removal and replacing of fences.
24. For street lamps.
25. For wagon tires.
§ 18. Deduction by tenant.— A tenant occupying land under a
lease for a term of less than twenty-five years, if no different
agreement has been made with his landlord, may deduct from the
rent due, highway labor performed or commuted for by him on
account of such land, at the rate of one dollar per day for each
day's labor assessed. This does not, however, include his personal
assessments, which he is liable to discharge on his own account
without regard to the occupancy of land. (H. L., § 39, p. 15.)
§ 19. Rebates.—Various abatements of highway tax are author
ized by law, for the planting of trees along the highway, construct-
ing sidewalks, maintaining watering troughs, removing and replac-
ing fences to prevent obstruction by snow, erecting and maintaining
street lamps, and using wagon tires of a width calculated to pre-
vent injury to the highway; but to be available as a rebate they
must be under proper conditions, with the consent and approval
of the highway officers. The several rebates, therefore, will be
taken up consecutively and the consents and conditions applicable
to each specified. º
§ 20. For shade trees.—An application should be made in writing
to the highway commissioners for permission to plant forest shade
trees, fruit trees, or any nut-bearing trees, suitable for shade
trees, in front of the premises specified and, although not required
by the statute, should be accompanied by a diagram or map
showing the location of the premises, the location and number of
trees to be planted and indicating the distances between the trees.
The trees must not be more than eight feet from the outside line of
a highway three rods in width, nor more than one additional foot
further therefrom for each additional rod in width of highway.
124 HIGHWAY MANUAL OF NEW YORK.
If the trees are elms, they must not be less than seventy feet
apart on the same side of the highway. If any other kind of tree,
they must not be less than fifty feet apart. The commissioners
may make an order authorizing the person making an applica-
tion to plant trees in front of his premises, at his own expense,
in accordance with a map or diagram attached to the Order.
The order and diagram may be in the following form:
COUNTY OF. . . . . . . . . . . . . . . . } SS. '
TOWN OF . . . . . . . . . . . . . . . .
We, the undersigned commissioners of highways of said town, do hereby
authorize L. M., at his own expense, to locate and plant trees and locate and con-
struct sidewalks along the highway adjoining his premises, in highway district
No. . . . . . in said town, according to a map or diagram hereto attached and
made a part of this order.
Dated this....day of. . . . . . . . . . , 18. . .
A B,
C D,
E F,
Commissioners of Highways.
MAP OR DLAGRAM SHOWING LOCATION OF SIDEWALK AND TREE PLANTING,
(Here make a diagram showing location of sidewalk to be laid and trees to be
planted.)
Dated this....day of . . . . . . . . . . , 18...
A B,
C D,
E F,
Commissioners of Highways.
The map may be the same contained in the application or may
be modified by the commissioners. The order, with a map or
diagram, must be filed in the town clerk's office within ten days
after it is made by the commissioners.
A rebate of one dollar for every four trees set in pursuance
of an order of the highway commissioners must be allowed by the
officer having charge of the highway, but to be entitled to such an
allowance the trees must have been set out the previous year and
be living and well protected from animals. A rebate must be
allowed in the same manner for trees transplanted by the side of
the highway in place of trees which have died. The rebate for
shade trees in any one year shall not exceed one-quarter of the
$3
HIGHwAY MANUAL OF NEW YORK. 125
annual highway tax of the person planting them, but the officer
having charge of the highway must continue to allow such rebate
annually until the rebate has equalled the whole number of trees
set out, at the rate before specified. (H. L., §§ 43,44, p. 16.)
If a man sets out twenty trees, he is entitled to a rebate of
twenty dollars in all; but if his tax for the year is twenty dollars
(or twenty days’ labor), he can be allowed but one-quarter of
twenty dollars, or five dollars, for the first year, and each year
thereafter he will be entitled to a rebate of five dollars until the
entire twenty dollars has been allowed.
$21. Forsidewalks.-A majority of the inhabitants of any dis-
trict subject to assessments for highway labor may apply to the
commissioners for authority to expend, under the direction of
the overseer, not to exceed one-quarter of the highway tax of the
district, in constructing and improving the sidewalks of the dis-
trict. The application should be in writing, and may be in the
following form:
To the Commissioners of Highways of the Town of.................... , in the
Cownty of. . . . . . . . . . . . . . ;
We, the undersigned, a majority of the inhabitants of highway district No. .
in said town Of... . . . . . . . . . . , subject to assessment for highway labor therein,
hereby make application to you for authority to anticipate and expend (not
more than one-quarter) of the highway labor or commutation money of said
district in the construction, improvement and repair of the sidewalks in said
district for the term of (not exceeding three) years, pursuant to section 45 of
the highway law.
Dated this....day of.......... , 18. . . .
L. M.
R. S.
T W.
The commissioners may grant permission for the anticipation of
not to exceed one-fourth of the highway labor of the district, for
the purpose of constructing or improving such sidewalks. If the
usual highway labor of the district is 500 days, the commissioners
may permit 500 days’ labor to be performed in one year, and for
each of the next three years 125 days must be deducted from the
assessment. The permission of the commissioners should be in
writing, although not required by law, and should be filed in the
126 HIGHwAY MANUAL OF NEW YORK.
office of the town clerk. (H. L., § 45, p. 17.) It may be in the
following form:
COUNTY OF. . . . . . . . . . . . . . . . } SS,
TOWN OF . . . . . . . . . . . . . . . . e
We, the undersigned commissioners of highways of said town, hereby
authorize the overseer of highway district No..., in said town, to anticipate and
expend (not exceeding one-quarter) of the highway labor or commutation
money received therefor, in said district, for the term of (not exceeding three).
years, in the construction, improvement and repair of the sidewalk within the
limits of said district, pursuant to sections 45 and 46 of the highway law.
Dated this....day of . . . . . . . . . . . . . , 18. . . .
A B,
C D,
E F,
Commissioners of Highways.
The overseer must give to the person or corporation perform-
ing such labor or commuting therefor a certificate which may
be in the following form:
COUNTY OF. . . . . . . . . . . . . . . . } SS.
TOWN OF . . . . . . . . . . . . . . . . &
I, the undersigned, overseer of highway district No...... in the said town of
e e º e º ºs e º e º 'º º hereby certify that R S has anticipated and worked (or commuted
for). . . . . . days, constructing, improving and repairing the sidewalk within the
limits of said district, pursuant to section 45 of the highway law.
Dated this....day of.......... 18. .
T. M.,
Overseer of Highways, District No....
In each succeeding year, on presentation of the certificate, the
overseer must credit such person or corporation with the number
of days anticipated for such year, and indorse on the certificate
a statement of the credit and allowance. (H. L., § 46, p. 18.)
If the premises are voluntarily sold the certificate may be
transferred to the grantee, and the assignment should be indorsed
on the back of the certificate as follows:
For value received, I hereby assign and transfer all my right and interest in
and to the within certificate of anticipation to J B, grantee of the real property
upon which such highway labor is assessable.
Dated this....day of... . . . . . . . 18. . . -
R. S.
If the premises are involuntarily sold, as for instance pursuant
to a judgment of a court, the certificate is deemed to pass to the
transferee. (H. L., § 47, p. 18.)
HIGHway MANUAL of NEw York. 127
§ 22. For watering troughs.- The commissioners of highways
must annually abate three dollars from the highway tax of any
inhabitant who constructs upon his own land and keeps in repair a
watering-trough beside the public highway, well supplied with
fresh water, the surface of which is two feet or more above the
level of the ground and easily accessible for horses attached to
vehicles. As the highway commissioners are authorized to
determine the number and location of the watering troughs in
a district, their approval should first be obtained if an abate-
ment of tax is expected. (H. L., § 48, p. 18.)
§ 23. For theremoval and replacing offences.—Any person liable
to a highway tax, who removes from lands owned or occupied by
him, a highway fence for the purpose of preventing the drift-
ing of snow into such highway, must be allowed by the overseer
a rebate from his highway tax for the time actually employed
in removing such fence pursuant to the directions of the over-
:Seer, and in replacing the same. (H. L., § 72, p. 26.)
§ 24. For street lamps.--Except in the county of Kings or in
a city or Village, a person or corporation who, with the con-
sent of the overseer of the district, erects a street lamp in
front of the premises owned or occupied by him, and causes
the same to be kept burning during such hours as the overseer
directs, must be allowed by the overseer in abatement of the
highway tax assessed on the premises, six dollars annually, or
such portion of six dollars as the annual highway taxes on such
premises may be. (H. L., § 73, p. 26.)
§ 25. For wagon tires.—- A person who makes an affidavit before
an Yverseer that during any year ending June first, all wagons or
vehicles with wheels, upon which two or more horses are used,
driven by him upon the public highways, except buggies, car-
riages or platform Spring Wagons carrying a weight of one thou-
sand pounds or less, has a tire to the wheels of three inches or
more in width, shall receive a rebate of one-half of his assessed
highway tax for each such year, not to exceed four dollars or
four days’ labor in any one year, and he shall be entitled to such
128 HIGHwa Y MANUAL OF NEW YORK.
credit lºy the overseer in the district in which he resides or in
which he is assessed. (H. L., § 74, p. 26.)
IV. PURCHASE OF Tools AND MACHINEs.
Section 26. Road machines, scrapers and ploughs.
27. Stone crushers.
$26. Road machines, scrapers and ploughs.--On the request of
the overseer of any district or on the joint request of the overseers
of two or more districts, the highway commissioners may purchase
a good and sufficient iron or steel shod scraper, road machine and
plough, or either of them, for the use of the district or districts
making the application. The implements must be paid for out of the
highway tax of the district or districts and may be paid for in five
annual installments. If purchased for two or more districts, the
expense must be apportioned in proportion to the highway tax of
each district. Not over half of the highway tax of any district can
be applied in payment for such implements in any year. The
tax required must be paid in money, whether or not the roads of
the town are worked by the labor system, and must be levied
and collected the same as any other town charge. (H. L.,
§ 6, p. 6)
§ 27 Stone crushers.- The electors of a town by a majority
Vote by ballot, at an annual or a special town meeting may author-
ize the commissioners of highways to purchase a machine for crush-
ing stone, which shall be under the care and control of the com-
missioners of highways. The commissioners may permit a vil-
lage which is a separte road district to use the machine. The
commissioners may expend not to exceed two thousand dollars
annually for the purpose of acquiring stone, operating such
machine and placing the crushed stone on the highways. The
expense is in addition to other highway taxes of the town, whether
the highways of the town are worked by the labor or the money
system. (H. L., §§ 7, 8, p. 6)
W. NoTICE TO PERFORM LABOR.
Section 28. General notice.
29. Notice to non-residents.
HIGHWAY MANUAL of NEw YorF. 129
§ 28. General notice.—Commissioners of highways are to require
the overseers to warn persons and corporations assessed to work
upon highways, to come and work thereupon, with such teams
and implements and at such times as the commissioners, or any
one of them, direct. The overseer must give at least twenty-four
hours' notice of the time when they are to appear for work, with
what teams and implements, and that they will be allowed one
day for every eight hours of work between seven in the morning
and six in the afternoon. The notice to individual residents need
not be in writing; but the notice to a corporation must be written
and Served personally on an agent of the corporation living in
the town, or if there is none by filing the notice in the town clerk's
office at least five days before the labor is required. It may be
in the following form:
To T W., a Corporation (or R S, Agent of T' W):
district No. . . . . . in the town of... . . . . . . . . . . . , County of. . . . . . . . . . . . . , and
that said labor is required to be performed on the highway (state where) in said
district, on the....day of... . . . . . . . . . next, and the days following, and you
are required to furnish (state what utensils, if any), and to perform. . . . . . day
labor in a day, and will be allowed one day for every eight hours’ of work on
Said highway between 7 o'clock in the A. M. and 6 o'clock in the P. M.
Dated this....day of . . . . . . . . . . . . . . . . , 18. . . .
L M,
Overseer of Highway District No. . . .
The overseer may require a corporation to perform any number
of days’ labor not exceeding fifty, in one day, but of course this
does not authorize the overseer to exceed the entire number of
days assessed to the corporation. (H. L., § 60, p. 21.)
§ 29. Notice to nonresidents.-A notice must be given by the
overseer to the resident agent of a non-resident, assessed within
the district, which may be in the following form:
To R S, Agent of T W., a Non-resident Owner of Lands in the Town
of . . . . . . . . . . . . . . . , in the county of... . . . . . . . . . . . . .
Take notice that T W., a non-resident of the said town, is assessed . . . . days
labor in highway district No. ..., in said town, and that said labor is required
to be performed on the highway (state where) in said district on the....day of
* * * * * * * * * * * * * * * * next, and the days following.
Dated this . . . . day of . . . . . . . . . . . . , 18. ,
L M,
Overseer of Highway District No. . . .
130 HIGHWAY MANUAL OF NEw York.
If the Overseer cannot ascertain that there is such an agent, he
must file a notice in the town clerk's office at least twenty days
before the labor is to be performed, which may be in the following
form: - -
Notice is hereby given that the highway labor assessed on the following
described parcels of land in the town of . . . . . . . . . . . . . , County Of... . . . . . • * * * >
owned by non-residents, is required to be performed from the.... day
of . . . . . . . . . . . . to the day Of... . . . . . . . . next, in highway district No. . . ., in
said town, on the highway (state where).
OWNER'S NAMES. Description of lands. asºn.
Dated this....day of... . . . . . . . . . . . . , 18. . . .
* L M,

Overseer of Highway District No. ...
(H. L., § 61, p. 21.)
VI. COMMUTATION.
$ 30. Commutation is allowed at the rate of a dollar for
each day assessed. It must be paid to the overseer at least
twenty-four hours before the time when the labor is to be per-
formed; but a corporation may pay such money to the cominis-
sioners of highways of the town, who must pay it over to the
overseers of the districts in which the labor was assessed. (H. L.,
§ 62, p. 22.) t
VII. TEAMs; SUBSTITUTEs.
Section 31. Teams.
32. Substitutes.
§ 31. Teams. – The overseer may require a team, cart, Wagon or
plough, with a pair of horses or oxen, and a man to manage them,
from any person having the same within his district, who has been
HIGHwAY MANUAL OF NEw Yorf. 131
assessed three or more days’ labor and has not commuted. A
compliance with such 'requisition entitles the person to three days'
credit for each day's service. (H. L., § 63, p. 22.)
§ 32. Substitutes.— A person or corporation may perform labor
by €mploying an able-bodied man as a substitute. A person or
corporation assessed for more than one day may work ten hours
in each day and shall be entitled to credit for the two hours' addi-
tional time. (H. L., § 64, p. 22.)
VIII. Acquisition of GRAVEL.
§ 33. An overseer, with the consent of the highway commis-
sioners and town board of his town, may purchase gravel
for improving the highways at a price per cubic yard
approved by the commissioners and town board. If the overseer
can not agree with the owner, he may, with the consent of the
commissioners and town board, acquire by condemnation the right
to take such gravel for improving the highways, together with
the right of way from the bed or gravel pit; but no gravel shall be
condemned within one thousand feet of a house or barn, or taken
from a lawn, orchard or vineyard. Two or more highway dis-
tricts may unite in the acquisition of such gravel, but in that case
the highway commissioners must acquire the property. The
expense of acquiring such gravel, with the exception of condemna-
tion proceedings, the expense of which is a town charge, must be
paid by the districts in which the gravel is used.
If the right of taking such gravel is abandoned for three years
the ownership of a pit or bed reverts to the former owner, his
heirs and assigns. (L. 1891, ch. 309, p. 81.)
IX. PENALTIES FOR REFUSING To WoRK.
§ 34. If a person or corporation fails to work or commute
when duly notified, a penalty of one dollar and fifty
cents for each day that he so fails, is imposed. If
a person omits, when required, to furnish a team, cart, wagon,
implements and man, he is liable to a penalty of five dollars for
each day's omission, or if he omits to furnish either a cart, wagon,
plow, team or man, he is liable to a penalty of one dollar and fifty
132 HIGHWAY MANUAL OF NEW YORK,
cents for each day's omission. If, after, appearing, a person
remains idle or does not work faithfully or hinders others from
working, he is liable to a penalty at the rate of one dollar and
fifty cents a day for each hour. Penalties may be recovered by
the overseer in a court having jurisdiction and may be disposed of
by him the same as commutation moneys. They must be applied
in satisfaction of the labor for omission to perform whicn they
were imposed.
An overseer may excuse an omission to perform labor if a
satisfactory reason is given, but the person excused must perform
the entire number of days’ labor for which he has been assessed.
(H. L., § 65, p. 23.)
X. UNPERFORMED LABOR.
§ 35. An overseer, on or before October first, must make out
and deliver to the supervisor a list of persons and
corporations who have not worked out or commuted for their high-
way assessment, stating also the number of days not worked or
commuted for by each and charging for each day at the rate of
one dollar and fifty cents. He must also make out a list of the
lands of non-residents and persons unknown assessed on his war-
rant by the commissioners or added by him, on which the labor
assessed has not been performed or commuted for, and stating
the number of such days, charging for the same at the rate of
One dollar and fifty cents per day. The overseer must attach to
such list his affidavit that he has given the notice required and
that the labor specified in the list returned has rºot been per-
formed or commuted. (H. L., § 66, p. 23.)
The following is a proper form for the overseer's list and
affidavit:
To the Supervisor of the Town. . . . . . . . . . . . . , in the County of... . . . . . . . . . :
The following is a list of all the resident landholders residing in highway dis-
trict No. ..., in the said town of . . . . . . . . . . . . . . , who have not worked out their
highway assessments, or commuted for the same, with the number of days not
worked or commuted for by each, at one dollar and fifty cents per day; and
also a list of all the lands of non-residents and of persons unknown, which are
assessed on my warrant by the commissioners of highways, or added by me
HIGHwAY MANUAL OF N rw YoFK. 133
oboording to law, on which the labor assessed has not been performed or com-
muted for, and the number of day's labor unpaid by each, charging for each at
the rate of one dollar and fifty cents per day:


º e Assessed Number
OWNERS’ NAME. Description of land. value. of days. Amount.
List of Non-resident Lands.

OWNERS’ NAME. Description of land. * | *. Amount.
L M,
Overseer of Highway District No. ...
COUNTY OF................ }ss.
TOWN OF ................
L M, being duly sworn, says he is the overseer of highway district No. ..., in
the town of . . . . . . . . . . , in the county Of... . . . . . . . . . , and that he has given the
notices to appear and work, required by sections 60 and 61 of the highway
law and that the labor for which such residents and such land is returned, has
not been performed or commuted for. L M
Overseer of Highway District No....
Subscribed and sworn to before }
me, this....day of...... 18. .
G H,
Justice of the Peace.
If the overseer does not deliver such list to the supervisor, he is
liable to a penalty of ten dollars, and the amount of such taxes
at the rate of one dollar and fifty cents a day, recoverable by the
commissioners to be by them applied in improving the highways
and bridges of the delinquent overseer's district.
134 HIGHWAY MANUAL OF NEW YORK.
The supervisor must present such lists to the board of super-
Visors, which, at its next annual meeting, must cause the amount
of such arrearages to be collected from the person, corporation
or property specified in the list, in the same manner as other
town taxes are collected. Such taxes must be paid over to the
commissioners to be expended in the improvement of the high-
ways of the district. (H. L., §§ 67, 68, p. 24.)
|XI. OPENING OBSTRUCTED HIGHWAYs.
§ 36. If the highways of any district are obstructed by snow
or otherwise and the labor of the district has been worked out,
commuted for, or returned to the supervisor, two or more inhabit.
ants of the town, liable to pay a highway tax, may serve, on the
overseer written notice, which may be in the following form:
To L. M., Overseer of Highway District No. . . ., of the Town of............ , in
the County Of... . . . . . . . . . .:
We, the undersigned inhabitants of said town, liable to payment of highway
tax, hereby give notice that the highway in said district is obstructed by Snow
(or otherwise) at (describe where), and request that you forthwith proceed to
remove said obstruction.
Dated this....day of... . . . . . . . . . . . , 18. . . .
J. K.
T W.
On receiving such notice, he must call out the persons and
corporations of the district, liable to assessment for highway
labor and require them to perform the work of removing the
snow or other obstructions, in the same proportion as their
original assessments. (H. L., § 21, p. 10.) If ary Ferson fails
to appear at the place designated by the overseer, or
to commute at a dollar a day, within twenty-four hours
after notice, he is liable to a fine of one dollar and fifty cents
for each day's labor, which may be collected by the overseer in a
justice's court and shall be applied to the purpose of removing such
obstruction. The notice of the overseer to perform the work need
not be written. If the overseer neglects without good reason to
have such highway opened after receiving a written notice, he is
liable to a penalty of five dollars per day, which may be collected
in a justice's court by any one suing for the same, and shall be paid
HIGHWAY MANUAL OF NEW YORK. 135
over to the commissioners of highways for the use of the town.
(H. L., § 21, p. 11.)
XII. RIGHTS IN CONNECTION witH WoRKING THE HIGH ways.
§ 37. As a general principle the owner of the fee of the highway
is entitled to all materials in the highway which are not strictly
requisite for the public use. For instance, the highway
officers are not entitled to take gravel in front of one
man's premises to repair the road in front of another's
unless the taking of such gravel is necessarily incident to
the repair of the highway in front of the former's prem-
ises. (Robert v. Sadler, 104 N. Y., 229.) Thus, if the highway in
front of A's premises is fifteen inches above the established grade
while the highway in front of B's premises is fifteen inches below
the grade, the highway officers may take fifteen inches of gravel
from the surface of the highway in front of A's premises and use
it in filling up the highway in front of B's; but they would not be
entitled to dig pits in front of A's premises for the purpose of
obtaining gravel or other material, even though they refilled them
and left the road-bed as good as before. If they should do so, A
would be entitled to recover damages for the injury to his prop-
erty. So, also, trees on land over which a highway is laid out
belong to the owner of the fee of the land, except such of them as
are required to repair the highways or bridges upon the same
land. (H. L., § 156, p. 45.) . They can not be taken to repair the
highway in front of premises owned by another.
Highway officers may construct the highway in accordance with
the established grade, and, if not done maliciously, they are not
responsible for damages which result to adjoining owners. (Rad-
cliff, etc., v. Mayor of Brooklyn, 4 N. Y., 195; Anderson v. Van Tas.
sel, 53 N. Y., 631.) They have no right to change a natural water-
course (Moran v. McClearn, 63 Barb., 185), but in grading highways
they are not liable for the disposition of surface water or required
to construct a drain to carry it off. (Gould v. Booth, 66 N. Y., 62;
Acker v. Town of New Castle, 48 Hun, 3.12.)
An overseer should cause the highways of his district to be
repaired fairly and equally. He owes the same duty to the resi.
dents of the entire district that he owes to his immediate neighbor,
136 HIGHWAY MANUAL OF NEw YorF.
XIII. ExTRAORDINARY REPAIRs.
§ 38. If a highway or bridge is destroyed or damaged the
commissioner of highways, with the consent of the town
board, may cause it to be repaired or rebuilt, although
the expense is more than has been authorized at the previous town
meeting for highway purposes. The expense is a town charge.
The consent of the town board should be by resolution, which may
be in the following form:
At a special meeting of the town board of said town, called by the supervisor
(or town clerk) thereof, held on this. ...day of . . . . . . . . , 18.., the following
preamble and resolution was adopted:
WHEREAS, The highway (or bridge), known as (here describe it), was destroyed
by (describe how), on... . . . . . . . . . . . . , 18.. (or has become damaged), and there
not being sufficient moneys in the hands of the commissioners of highways to
rebuild (or repair) the same; therefore, be it
Resolved, That we do hereby consent that the commissioners of highways of
the town of . . . . . . . . . . . . . . . . . cause said highway (or bridge) to be immediately
rebuilt (or repaired) according to law.
(Town board sign here.)
Town Clerk’s Certificate to transcript.
TOWN OF. . . . . . . . . . . . . . . . } SS
OFFICE OF Town CLERK,
I do hereby certify that I have compared the above transcript of the pro
ceedings of the town board of said town, at a special meeting held on the . . . .
day of . . . . . . . . . 18.., with the original record thereof in my office, and that
the same is a correct transcript therefrom, and of the whole of such original.
Dated this . . . . day of . . . . . . . . . . . . , 18.
O P,
Town, (Jierk.
The supervisor, or in his absence, the town clerk may convene
the town board in a special session, if the commissioners of high-
ways so request in writing, and the bills and expenses incurred
in the erection or repair of any such highway or bridge may
HIGHWAY MANUAL OF NEW YORK. 137
then },e presented to the board and audited. The request may be
in the following form:
To the Supervisor (or Town Clerk) of the Town of ................ , in the
County of . . . . . . . . . . . . . . . . ;
The undersigned commissioners of highways of said town, do hereby request
that the town board be convened in special session, for the purpose of auditing
the bills and expenses incurred in the erection (or repair) of the highway (or
bridge) under the consent given by said board on the . . . . day of . . . . . . . . . . . . 9
18..
Dated this . . . . day of . . . . . . . . . . . . , 18..
A B,
C D,
E F, *—
Commissioners of Highways.
The supervisor and town clerk must issue a certificate, sub-
scribed by them, stating the amount allowed, in whose favor, the
nature of the work done and materials furnished. It may be in
the following form:
COUNTY. . . . . . . . . . . . . . } SS. :
TOWN OF... . . . . . . . . tº
g
The undersigned, supervisor and town clerk of said town, do hereby certify
that at a special session of the town board this day held, for the purpose of
auditing and allowing the bills and expenses incurred by the commissioners of
highways of said town, under the consent given by saic town board, on the
day. . . . . . . . . . . . . . , 18. ..., the following bills and accounts were audited
awad allowed, with interest:

Nature of work done and material Amount
Date. IN WEIOSE FAVOR, furnished. allowed.
Dated this. ...day of... . . . . . . . . . . . . . , 18. . . .
R. S.,
Supervisor.
O P,
Town, Clerk.
The certificate bears interests from its date, and the armount
thereof, with interest, must be levied and collected in the same
manner as other town expenses. (H. L., § 11, p. 7.)
18
138 HIGHWAY MANUAL OF NEW YORK.
*
XIV. MISCELLANEOUs MATTERs.
Section 39. Accounts for services and materials.
40. Additional tax where $500 is insufficient.
41. License fees applicable to highway purposes.
42. Mile-stones and guide-posts.
43. Sign-boards and flagmen at railroad crossings.
44. Authority of board of supervisors to borrow money
for highway purposes.
45. Survey and records of highway.
46. Highways through unimproved hand.
47. Powers of commissioners in relation to overflow of
WaterS.
48. Alteration of State roads.
49. Injury to highway or bridge.
§ 39. Accounts for services and materials.-The town board shall
not allow any account for services rendered or materials furnished
for highway purposes, unless it is verified, the same as a tºwn
account is required to be verified, nor unless the commissioners
of highways certify that the services have been actually performed
and the material actually furnished at their request. The town
board may take such other proof as they deem proper to establish
any claim for such labor and material, and the value thercof.
(H. L., § 12, p. 7.) The account, verification and certificate, may
be in the following form:
THE TOWN OF. . . . . . . . . . . . , TO L M, Dr.
January, 18.., to... . . . . . . . . . . . (days’ labor on). . . . . . . . . . . . . . . . . . $
January, 18.., to. . . . . . . . . . . . . . (feet of plank). . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
L M.
COUNTY OF. . . . . . . . . . . . . . . . } SS.
TOWN OF . . . . . . . . . . . . . . . . ſº
L M, being duly sworn says, he is the claimant in the above account, and
that the items of said account are correct, and that the disbursements and
services charged therein have been in fact made or rendered, and goods Sup-
plied, and that no part of the same has been Satisfied. L M
| º
Subscribed and sworn to before me,
this...,day of . . . . . . . . . , 18. . .
G H,
Justice of the Peace.
HIGHWAY MANUAL OF NEW YORK. 139
COUNTY OF................ }
88. :
TOWN OF . . . . . . . . . . . . . . . .
The undersigned, commissioners of highways of said town, do hereby certify .
that in the foregoing account of LM, the services mentioned were actually per-
formed, and the material mentioned was actually furnished, and the same was
So performed and furnished at our request.
Dated this. ...day of... . . . . . . . . . , 18. . .
3.
A B
C D,
E F,
Commissioners of Highways.
$ 40. Additional tax where five mundred dollars is insufficient.—
If five hundred dollars is insufficient to pay the expense of improv-
ing highways and bridges, the commissioners of highways may
cause a vote to be taken by ballot at any town meeting, author-
izing such additional sum as may be necessary, not exceeding
one-third of one per centum on the taxable property of the town
as shown by the last assessment-roll. (H. L., § 9, p. 7.) At
least twenty days before the town meeting, the commissioners
must file with the town clerk a notice plainly stating such ques-
tion, and requesting a vote thereon at the town meeting. (T. L.,
§ 34.)
§ 41. License fees applicable to highway purposes.—If a town
contains a population of three thousand residing outside of cities
or villages, commissioners of highways are authorized to receive
the license fees collected in pursuance of chapter three hundred
and thirty-two of the laws of eighteen hundred and ninety from
public tax on vehicles, venders, shows, concerts and public amuse-
ments in such town, and shall apply such fees to the improvement
or repair of the highways of the town. (L. 1890, chap. 332, p. 79.)
§ 42. Mile-stones and guide-posts.-Commissioners of highways
may cause mile-boards or stones to be erected on the highway
and may also cause guide-posts, with proper inscriptions, to be
erected at the intersection of highways. Such erections shall be
kept in repair, at the expense of the town, by the overseers of
the districts in which located. (H. L., § 5, p. 5.) Any person
who willfully or maliciously displaces, removes, injures or destroys
140 HIGHWAY MANUAL OF NEW YORK.
any such mile-board, mile-stone, or guide-post, or any inscription
on the same is punishable by imprisonment for not more than
two years, and forfeits treble damages. (Penal Code, § 639, p. 87;
H. L., § 153, p. 45.)
$43. Sign-boards and flagmen at railroad crossings.--Wherever a
railroad crosses a highway outside of a city or village at grade,
the railroad corporation is required to erect a sign-board, elevated
so as not to obstruct travel and so as to be easily seen, on each
side of which shall be painted in capital letters at least nine
inches in length and of suitable width, the words, “Railroad
crossing; look out for the cars.” In cities and villages they need
not be erected unless required by the officers having charge of the
streets. The local authorities may also request a railroad cor-
poration whose railroad crosses a railroad at grade, to station
a flagman or erect gates at such crossing; and if the corporation
refuses, the local authorities may apply to the supreme court,
on ten days’ notice to the corporation, and the court may order
that a flagman be stationed at such point or that gates be erected
or may make such further orders as it deems proper. (R. R. L.,
§ 33, p. 70.)
§ 44. Authority of board of supervisors to borrow money for
highway purposes.— The board of supervisors of a county
On the application of any town or towns liable to taxation
for constructing, building or repairing any highway or bridge
therein, or upon its borders pursuant to a vote of a majority
of the electors thereof at an annual town meeting
or special town meeting called for that purpose, or on the
Written request of the commissioners of highways and town board
of such town or towns, may authorize such town or towns to
construct, build and repair such highway or bridge, and to borrow
such sums of money for and on the credit of the towns as may be
necessary for that purpose, and to lay out, widen, grade or mac-
adamize such highway, or to purchase for public use any plank-
road, turnpike, toll-road or toll-bridge in such town or towns, and
may authorize the company owning the same to sell the same,
or any part thereof or the franchises thereof, or to pay any debt
HIGHWAY MANUAL OF NEw York. 141
incurred in good faith by or in behalf of such town or towns for
such purpose. If such highway or bridge shall be situated in two
or more towns in the same county, the board shall apportion the
expenses among such towns in such proportion as shall be just.
The board shall, from time to time, impose upon the taxable
property of such towns sufficient tax to pay such obligations
as they shall become due. The supervisor and town clerk shall
each keep a record, showing the date and amount of the obliga-
tions issued, the time and place of their payment, and the rate
of interest thereon. The obligations shall be delivered to the
supervisor of the town, who shall dispose of the same for not
less than par, and pay the proceeds to the commissioners of high-
ways of the town, or to such other officer as shall be designated
by the board of supervisors, to be used by them for the purposes
for which the same were appropriated; but not more than five
hundred dollars of such proceeds shall be expended upon any
highway or bridge, except in pursuance of a contract nuade by a
contractor with the commissioners of highways of the town, or
other officer designated by the board of supervisors, and approved
by the town board, no member of which shall be interested therein.
If such highway or bridge shall be wholly or partly within the
limits of an incorporated village, the consent of a Imajority of the
trustees of such village shall be necessary for the action of the
board of supervisors as herein provided. (County L., §§ 69,
70, p. 61.)
§45. Survey and records of highways.-A board of supervisors
may direct the commissioners of highways of any town to cause
a survey to be made at the expense of the town of all the high-
ways therein, to make a systematic record thereof, or to revise,
collect and rearrange existing records and correct and verify the
same by new surveys and to establish the location of highways by
suitable monuments. The records made, or revised, corrected and
verified should be deposited with the town clerk and are there-
after the lawful record of the highways which they describe. They
do not effect, rights pending in a judicial proceeding commenced
before the deposit of such revised records with the town clerk.
(Co. L., § 72, p. 63.)
142 HIGHWAY MANUAL OF NEW YORK.
$46. Highways through unimproved land.—In counties contain.
ing more than three hundred thousand acres of unimproved,
unoccupied forest lands the board of supervisors may establish
highway districts for the purpose of constructing highways
through such lands, on the application of the owners of more
than one-half of the non-resident lands therein. Each district
shall consist of contiguous tracts of land, and may include parts
of one or lùore towns. They may be changed, altered or abolished
by the board of supervisors. *
The board of Supervisors may appoint one or more commis-
Sioners to lay out and construct highways in any such district,
and prescribe their powers and duties. The board may direct
the Inanner in which highway taxes shall be assessed, levied and
collected on the lands within the district, and the manner of
expending the tax collected. They may also authorize the com-
missioners to borrow money, but not exceeding the amount of
ten years' highway taxes on such lands. For the purpose of
repaying Such loan, the board may set apart and appropriate the
highway taxes on such lands, for a period not exceeding ten
years from the time of making such loan. (Co. L., § 74, p. 64.)
In any other county the board may, on the application of the
owner's representing the majority in value of the real estate
lying along the line of a highway through unilitproved land,
authorize the appropriation of the non-resident highway tax on
the lands lying along such line, for the improvement of such
highways. The value should be ascertained by the last annual
assessment-roll of the town. (Co. L., § 75, p. 65.)
The board of supervisors may direct the expenditure of any
non-resident lighway or bridge tax, Set apart by an act of the
legislature, in counties where such non-resident lands are situated,
when the official life of commissioners appointed to receive and
expend such taxes has expired. (Co. L., § 76, p. 65.)
§47. Powers ofcommissioners in relation to overflow of waters.-
The commissioners of highways may enter upon the lands of any
person adjoining any of the rivers, streams or Greeks of the
state, drive spiles, throw up embankments, and perform such
HIGHwAY MANUAL OF NEw York. 143
other labor as may be necessary upon the banks for the purpose
of keeping them within their proper channels and preventing
their encroachment upon any of the highways of the state, and
to protect such highways and the property of the town from dam-
ages by reason of such rivers, streams or creeks washing away
their embankments, or changing the location of the channels,
and to agree with the owner of any such lands upon the amount
of damages, if any, sustained by him in consequence of such
entry upon his lands and the performance of the work, and the
almount of the damages so agreed upon shall be a town charge,
and shall be audited and paid in the same manner as other
town charges. If the commissioners are unable to agree with
such owner upon the amount of damages thus sustained, the
amount thereof shall be ascertained and deterinjned and paid in
the same Inanner as damages for the laying and opening of high-
Ways are required by law to be ascertained, determined and paid,
Where the commissioners and land owner are unable to agree
upon the amount thereof. (H. L., § 4, p. 4.)
§ 48. Alteration of state roads.-The board of supervisors of a
county may authorize the commissioners of highways of any
town to alter or discontinue a road or highway therein which has
been laid out by the state. Upon such permission being given,
the commissioners may alter or discontinue such road or highway
the same as if it had been laid out originally by the highway com-
missioners of such town. (Co. L., § 77, p. 65.)
§ 49. Injury to highway or bridge.—A person who maliciously
or willfully injures, destroys or removes a public highway or
bridge, or a private way laid out by authority of law, or a bridge
upon such public or private way, is punishable by imprisonment
for not more than two years and forfeits treble damages in
addition. (Penal Code, § 639, p. 87; H. L., § 153.)
C H A PTE R II.
Establishment and Discontinuance of Highways.
I. Establishment of highways.
II. Private roads,
III. Abandonment of highways.
IV. County highways.
V. Miscellaneous provisions.
Section
1.
º
I. ESTABLISHMENT OF HIGHWAYS.
EIOW established.
. Prescription.
. Dedication and acceptance.
. Order laying out highway upon dedication thereof.
. Release to be filed and recorded.
. Fee, in whom wested.
. Acceptance.
. Consent of town board.
. Application to highway commissioners.
. Application for commissioners to lay out, etc.
. Appointment of commissioners.
. Service of notice of appointment.
. Qualifications of commissioners.
. Notice of meeting.
. Service of notice.
. Proceedings of commissioners.
. Decision in favor of application.
. IDecision denying application.
. Motion to confirm, vacate or modify.
. Proceedings on motion to confirm.
HIGHwAY MANUAL OF NEw York. 145
Section 21.
22.
23.
24.
25.
26.
27.
28,
29.
30,
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
Proceedings on motion to vacate or modify.
Limitations on laying out highways.
Consent of owner.
Proceedings where owner refuses consent.
Order of county judge where owner refuses consent.
Proceedings before general term.
Certificate of highway commissioners.
Damages.
How assessed.
Damages allowed.
To Whom allowed.
Damages fixed by agreement.
Survey.
Width of road.
Description of route.
Fences to be removed.
Eighways or roads along division lines.
Costs; by whom paid.
Costs on reassessment of damages.
Damages assessed and costs to be audited.
Adjournments.
Papers, where filed.
Costs on motion.
§ 1. How established.—A highway may be created or established:
1. By prescription, or public use for twenty years or more.
2. By dedication and acceptance.
3. By statutory proceedings.
§ 2. Prescription.—A highway is said to be created by prescription
where lands have been used by the public as a highway for twenty
years or more.
The presumption of a grant of the right of way, springs from
the mere lapse of such period of time in connection with the use
of the land by the public. This presumption may be rebutted
19
146 HIGHWAY MANUAL OF NEW YORK.
by evidence that the use was by license from the owner. (City of
Cohoes W. D. & EI. C. Co., 134 N. Y., 397.) A highway so created
is treated within the bounds traveled, the same as though it had
been duly laid out and recorded as a highway and the highway
Commissioner is required to ascertain, describe and record such
highway in the town clerk's office. He must also order the over-
Seer of highways to open such highway to the width of at least
two rods. This order need not be in writing. (H. L., § 100,
p. 35.)
But if the portion traveled was less than two rods wide,
the extension of the width to two rods, must be by proceedings
for Widening and with compensation to the owner.
The fact that the public travel over a road for twenty years
can not make it a highway. There must be more. The user must
be like that of highways generally. The road must not only be
traveled upon, but it must be kept in repair or taken in charge
and adopted by the public authorities. Although the owner of
land may not dedicate it for a public highway, and may not
intend or assent that it become such, yet, if he permits it to be
used in the way just indicated for twenty years, it will be coll-
sidered a public highway, and the owner will not be permitted to
question the public right. (Spier v. Town of New Utrecht, 121
N. Y., 420.)
§ 3. Dedication and Acceptance.—Dedication is the voluntary
donation to the public by the owner of land, of the right to use
such land as a public highway.
The dedication to be effectual, must be intentional on the part
of the owner of the land and must be accepted by the public.
Only the person who owns the fee can dedicate lands for highway
purposes. The offer and acceptance may be implied, as where
the owner throws open his land intending to dedicate it for a
highway and the public use it for such a length of time that they
would be seriously inconvenienced by an interruption of the
enjoyment. No particular length of time is required to effect
such a dedication, but every case must depend on its own facts.
(City of Cohoes v. D. & H. C. Co., 134 N. Y., 397.) Long continued
HIGHway MANUAL OF NEw York. 147
and uninterrupted use of land by the public, however, furnishes
strong evidence of dedication. (Flack v. Village of Green Island,
122 N. Y., 107.) The owner of lands may negative any presump-
tion of dedication, by placing at the entrance of the passage
some obstacle or notice, as for instance, the sign “private pass-
age” or “no thoroughfare.”
§4. Order laying out highway upon dedication thereof—When-
ever land is dedicated to a town for highway purposes, the com-
missioners of highways of such town may, either with or without
a written application therefor, make an order laying out such
highway without expense to the town. The commissioners must
cause a survey of such highway to be made and incorporate such
survey in their order. The cost of making the survey is a town
charge. Such order containing the survey must be filed and
recorded in the town clerk's office, together with a release of the
land from the owner. The order so made by the commissioners
shall be final. (H. L., § 80, p. 28.)
The application, dedication, release and order may be in the
following form:
To the Commissioners of Highways of the Town of... . . . . . . . . . . . . . . . . . . in the
County of . . . . . . . . . . . . . . . ;
The undersigned, liable to be assessed for highway labor in the town of
s e º & e s 6 º' , hereby applies to you to lay Out a highway in said town, commencing
(describe the proposed highway), which proposed highway will pass through
the lands of R S, and TW, who consent to the laying out of such highway.
Dated this . . . . day of . . . . . . . . . . . . 18. .
L M.
I, R. S., of the town of . . . . . . . . . . . . , county of . . . . . . . . . . . . , N. Y., for value
received, hereby dedicate to the town of . . . . . . . . . . . . . , aforesaid, a strip of
land across my premises in said town, for the purposes of a highway, described
as follows: (Here describe premises dedicated.) And I also hereby release said
town from all damages by reason of the laying out and opening of said highway.
In witness whereof, I have hereunto set my hand and seal, this . . . . day
[SEAL.] of . . . . . . . . . . . . , 18. .
R. S.
STATE OF NEW YORK, !ss *
COUNTY OF. . . . . . . . . . . , “..
On this . . . . day of... . . . . . . . . . , 18.., before me, the subscriber, personally
appeared R S, to me known to be the person described in, and who executed
the foregoing agreement.
G. H.,
Justice of the Peace.
148 HIGHwa Y MANUAL OF NEW YORK.
in the county of . . . . . . . . . . . . . . . . . , on the....day . . . . . . . . . . . . . . . . . , 18. ..., for
the purpose of deliberating on the propriety of laying out a highway in Said
town, hereinafter described, and on the application of L M, a person liable to
be assessed for highway labor in said town, and a release from the owners of
the land through which the highways is proposed to be opened, having been
given, it is ordered and determined that a highway shall be, and the same is
hereby laid out in said town as follows: Beginning (here insert the survey bill)
and the line of survey shall be the center of the highway, which shall be. . . . . .
rods in width.
Dated this. ...day of... . . . . . . . . . , 18. . .
A B,
C D,
E F,
Commissioners of Highways.
No highway shall be laid out less than three rods in width.
(H. L., § 90, p. 31.)
The highway commissioners in laying out a highway exercise a
special and limited jurisdiction, and their acts may be impeached
by showing that the exceeded their power. (Ex parte Clapper,
3 Hill, 458)
§ 5. Release, to be filed and recorded.— Before the highway com-
missioners take any proceedings to lay out for highway purposes
the lands dedicated, they should file and record in the town
clerk's office a release of the land from the owner thereof; but the
court of appeals has held that where the owner of land petitioned
for and consented to the alteration of a highway, which was wholly
upon his farm, and personally closed a part of the road which was
abandoned, and opened and worked the new part, the lack of a
formal release did not render the order void so as to justify the
invasion of the closed highway by persons having no rights except
those common to the public. (Engleman v. Longhorst, 120 N. Y.,
332.)
Where lands have been dedicated for highway purposes the
highway commissioners may commence proceedings to lay out,
such highway without written application being made.
§ 6. Fee, in whom vested.—The party who makes the dedication
does not part with the title to such land. He retains the right to use
the land in any way consistent with the use to which it is dedi-
HIGHway MANUAL OF NEW YORK. 149
cated and the public acquires only the right of passage over 3Uch
land and such rights and privileges as are incident to the right of
passage.
§7. Acceptance.—To render a dedication complete or effectual it
must be accepted by the public and the owner may revoke the
dedication at any time before it has been accepted. The order of
the highway commissioners for the laying out of such highways
would constitute an acceptance. (H. L., § 80, p. 28.) When there is a
clear intention to dedicate land to the public as a highway, Ilo
formal laying out is necessary. Acceptance may be proved by the
acts and conduct of the public authorities recognizing and adopt-
ing the highway.
After a highway is once created by dedication, no action on the
part of the original owner can deprive it of that character. When
once established it remains a highway until discontinued accord-
ing to law. (City of Cohoes v. D. & H. C. Co., 134 N. Y., 397.)
If the highway is closed or discontinued, the lands are dis-
charged of the public easement.
§8. Consent oftown board.—The commissioners of highways may
on written application and with the written consent of the town
board, make an order laying out or altering a highway in their
town, on filing and recording in the town clerk’s office with such
application, consent and Order a release of all damages from the
owner of lands, taken or affected thereby, when the consideration
for such release, as agreed on between such commissioners and
Owners, does not, in any one case, from any one claimant, exceed
One hundred dollars, and from all claimants, five hundred dollars.
An order so made by the commissioners is final. (H. L., § 80, p.
28.) Before making such Order, the commissioners must cause a sur-
Vey of such highway to be made and incorporate such survey in the
order and it must be filed and recorded with the order. The
expense of the survey is a town charge. The town clerk must note
the time of recording the survey. (H. L., § 81, p. 28.)
The following forms for the application, consent, release and
order may be used.
150 HIGHWAY MANUAL OF NEW YORK,
*~
To the Commissioners of Highways of the Town of... . . . . . . . . . . . . . . . . ., in the
Cownty Of... . . . . . . . . . . . . . . ;
The undersigned, liable to be assessed for highway labor in the town of
& e º e º e s e º e º e hereby applies to you to lay out (or alter) a highway in said town,
commencing (describe the proposed highway), which proposed highway will
pass through the lands of R S and T W, who consent to the laying out (or alter-
ing) of such highway.
Dated this. ...day of. . . . . . . . . . . . , 18... L. M.
The undersigned, the town board of the town of . . . . . . . . . . . . . , in the county
of. . . . . . . . . . , hereby consent that the commissioners of highways of Said town
make an order laying out (or altering) the proposed highway described in the
application of L M, pursuant to section 80 of the highway law.
Dated this. ...day of . . . . . . . . . . . . , 18. . .
J B,
Supervisor.
O B,
Town, Clerk.
G. H.,
M. A.,
T W.,
C A,
Justices of the Peace.
I, R. S. of the town of . . . . . . . . . . . . , county of . . . . . . . . . . . . , N. Y., for and in
consideration of the sum of. . . . . . . . (not exceeding $100), hereby consent that a
highway be laid out and opened (or altered) across my premises in the town
of. . . . . . . . . . . . , County of . . . . . . . . . . . . , N. Y., pursuant to the application of
L M, dated the . . . . . . day of...... , 18. . , and release said town from all damages
by reason of laying out and opening (or altering) such highway through my
premises.
Dated this....day of... . . . . . . . . . . , 18. . R. S.
At a meeting of the commissioners of highways of the town of . . . . . . . . . . . .
in the county of . . . . . . . . . . . . , on the . . . . day of . . . . . . . . . . . . , 18. ., for the
purpose of deliberating on the propriety of laying out (or altering) a highway
in said town hereinafter described, on the written application of L M, a person
liable to be assessed for highway labor in said town, and the written consent
of the town board of said town, and a release from the owners of the land
through which the proposed highway is to be opened, the consideration of any
one claimant not exceeding $100, and to all the claimants not exceeding $500,
it is ordered and determined that a highway shall be, and the same is hereby
laid out in said town as follows: (Here insert survey bill.) And the line of
survey shall be the center of the highway, which shall be. . . . . . . rods in width.
Dated this. . . . . . . day of . . . . . . . . . . ..., 18 . .
A B,
C D,
E F,
Commissioners of Highways.
HIGHw AY MANUAL OF NEW YORK. 151
The application, consent and order together with the written
release from damages must be filed and recorded in the town
clerk's office. The town clerk should note the time of recording
these papers. The consideration for the release must not exceed
the sum of one hundred dollars, and the total sum paid to all
claimants must not exceed four hundred dollars. No such high-
way shall be laid out less than three rods in width. (H. L.,
§ 90, p. 31.)
Laying out, Altering and Discontinuing Highways According.
to Statute.
§ 9. Application to highway commissioners. —Any person or cor-
poration may make application to the commissioners of highways
of any town in which he or it is assessable for highway labor, to
alter or discontinue a highway or to lay out a new high Way in
such town. Fvery such application must be in writing, addressed
to the highway commissioners, and signed by the person apply-
ing. (H. L., § 82, p. 29.)
It is not necessary that the person who makes this applica-
tion should be a resident of the town. Any person or corpora-
tion that is assessable for highway labor in the town may make
the application.
The commissioners may proceed to lay out a highway on their
own motion and without the application of any person. If a
person who is not assessable for highway labor makes applica-
tion, the proceedings are not for that reason Void. (Marble v.
Whitney, 2S N. Y., 297.)
Where a person owns property in a town other than that in
which he resides and such property is occupied by a tenant, the
tenant may make the application. The application may be made
by any male citizen over the age of twenty-One years residing in
the town where such highway is proposed to be located if such
person is assessable.
Persons exempt from a poll-tax for highway labor are not
proper parties to make such application unless such persons own
or occupy property in the town where such highway is or is to
be located which is assessed for highway labor.
For an enumeration of the persons exempt from the poll-tax
see page 116.
152 HIGHWAY MANCAL OF NEw YoFK.
The application to lay out, alter or discontinue a highway may
be in the following forms, respectively:
To the Commissioners of Highways of the Town of............ , in the County
of . . . . . . . . . . . ;
The undersigned, liable to be assessed for highway labor in your town,
hereby applies to you to lay out a highway in said town, commencing (de-
scribe the proposed highway), which proposed highway will pass through the
lands of R S and T W (who consent to the laying out of the highway, or as the
case may be).
Dated this. . . . . . day of . . . . . . . . . . . . , 18. . . .
L. M.
To the Commissioners of Highways of the Town of............ , in the County
of . . . . . . . . . . . ;
The undersigned, liable to be assessed for highway labor in your town, hereby
applies to you to alter the highway leading from. . . . . . . . . . . . . to. . . . . . . . . . . . . 9
in said town as follows:
(Insert particular description of the proposed alteration by courses and dis-
tances.) The proposed alteration passes through the lands of R S and TW
(who consent to the proposed alteration, or as the case may be).
Dated this. . . . . . day of. . . . . . . . . . . . , 18. . . .
L M.
To the Commissioners of Highways of the Town of... . . . . . . . . . , in the County
of . . . . . . . . . . . ;
The undersigned, liable to be assessed for highway labor in your town, hereby
applies to you to discontinue the old highway beginning (insert description), on
the ground that said highway has been abandoned.
Dated this. . . . . . day of. . . . . . . . . . . . , 18. . . .
L M.
§ 10. Application for commissioners to lay out, etc.—If the land
has not been dedicated to the town for highway purposes and if the
owners of the land have not consented that it be taken by the
town for highway purposes and have not given a written release
from all damages for the lands so taken, the person who makes
this application must, within thirty days after presenting the
application to the commissioners of highways, make further appli.
cation to the county court of the county where such highway is,
for the appointment of three commissioners to determine on the
necessity of the highway proposed to be laid out, or altered, or
to the uselessness of the highway proposed to be discontinued:
and to assess the damages caused by reason of the laying out,
HIGHWAY MANUAL OF NEw YoFK. 153
opening, altering or discontinuing of such highway. (H. L.,
$ 83, p. 29.)
The application to the county court must be presented by
the person or persons making the original application to the high-
way commissioners and within thirty days after such original
application was so presented. The application must be in the
form of a verified petition and must show:
1. That the petitioner is a person liable to be assessed for
highway labor in the town where the application is made.
2. The previous application to the commissioners.
3. That the application has been presented in good faith.
4. That the highway commissioners have not laid out such
highway. -
Such petition and verification may be in the following form:
COUNTY COURT. — . . . . . . . . . . . . . . COUNTY.
IN THE MATTER OF THE APPLICATION OF L M TO LAY OUT (ALTER OR DISCON-
TINUE) A HIGHWAY IN THE TOWN OF... . . . . . . . . . . AND THE ASSESSMENT OF
DAMAGES THEREFOR.
To the County Court of... . . . . . . . . . . . . . County:
The petition of LM, of the town of. . . . . . . . . , county Of... . . . . . . . . , respectfully
shows that your petitioner is a person liable to be assessed for highway labor
in the town of . . . . . . . . . . , county of... . . . . . . . ; that on the....day of... . . . . . . .,
18.., he presented an application in writing to the commissioners of highways
of said town as follows: (Insert copy of the application to the commissioners.)
That said application was in good faith made; that the commissioners of high-
ways have not laid out (altered or discontinued) said highway pursuant to sec-
tion 80 of the highway law.
Wherefore, your petitioner prays that three commissioners be appointed pur-
suant to section 84 of the highway law, to determine upon the necessity of the
proposed highway (or altering or discontinuing the said highway), and to
assess the damages by reason of laying out and opening (or altering or discon-
tinuing) such highway.
Dated this....day Of... . . . . . . , 18...
T. M.
STATE OF NEW YORK, } SS..."
COUNTY OF... . . . . . . . . . tº º
L M, being duly sworn, says he has read the foregoing petition by him sub-
scribed, and that the same is true to the knowledge of deponent, except as to
the matters therein stated to be alleged on information and belief, and as to
those matters he believes it to be true.
L M.
Subscribed and sworn to before me, |
this....day of. . . . . . . . . . . , 18. . .
G. H.,
Justice of the Peace,
154 HIGHwa Y MANUAL OF NEW YORK.
§ 11. Appointment of commissioners.- On the presentation of
such petition, the county court must appoint three disinterested
freeholders as commissioners to determine on the necessity of lay-
ing out, altering or discontinuing such highway and to assess the
damages caused thereby. (H. L., § 84, p. 29.) The order may be
in the following form:
At a . . . . . . . . term of the County Court of the county of . . . . . . . . . . . . . . . . held
at . . . . . . . . in the . . . . . . . . . . . . in and for said county.
Present, Hon. E E, county judge.
IN THE MATTER OF THE APPLICATION OF L M, To LAY OUT (ALTER OR DISCON-
TINUE) A HIGHWAY IN THE TOWN OF. . . . . . . . . . . . . . AND THE ASSESSMENT OF
DAMAGES THEREFOR.
On reading and filing the petition of L M, of the town of. . . . . . . . in said
County, dated the . . . . day of . . . . . . . . . . . . , 18., praying for the appoint-
ment of three commissioners, pursuant to section 84 of the highway law, to
certify as to the necessity of laying out and opening (altering ordiscontinuing) a
highway beginning (insert the description) and to assess the damages by
reason of laying out (altering or discontinuing) such highway, it is hereby
ordered that S S, G. G. and J J of the town of . . . . . . . . . . . . , Said county, be,
and they are hereby appointed such commissioners.
§12. Service of notice of appointment.—The applicant should serve
the following notice, together with a copy of the order appointing
them, on the persons appointed commissioners by the court:
To SS, G G and J J :
Take notice, that you and each of you, have been duly appointed commis-
sioners, by an order of the county court, a copy of which is hereto annexed,
and you are hereby required to fix a time and place at which you will all meet
to hear the commissioners of highways and all other persons interested in the
highway mentioned in the said order.
Dated this . . . . day of . . . . . . . . . . . . , 18. . . L M.
§ 13. Qualifications of commissioners.--The persons appointed
must be residents of the county but not of the town where the
highway is located and must not be named by any person inter-
ested in the proceedings. If any of such commissioners neglect
or is prevented from Serving, the court which appointed him must
appoint another in his place. (H. L., §§ 84, 151, pp. 29, 45.)
Before entering upon their duties such commissioners must
each take the following oath:
HIGHWAY MANUAL of NEw York. 155
“I do solemnly swear (or affirm) that I will support the constitu-
tion of the United States, and the constitution of the State of New
York, and that I will faithfully discharge the duties of the office
of commissioners to lay out, alter or discontinue a highway (as
the case may be) according to the best of my ability.”
The taking of such oath is necessary to give the commissioners
jurisdiction, and the parties to the proceeding bave no right
to waive such an omission because the whole town has an
interest in the proceeding. (People v. O'Connor, 46 Barb., 383.)
$14. Notice of meeting.—The commissioners must appoint a time
and place at which they will all meet to hear the highway commis-
sioners of the town where such highway is situated and other
persons interested in the highway. Such meeting shall not occur
until at least eight days after their appointment. The party
making the application must cause at least eight days previous
written or printed notice to be posted in not less than three
public places in the town. Such notice must specify, as near as
possible, the highway proposed to be laid out, altered or dis-
continued, and the tracts or parcels of land through which it
runs, and the time and place of the meeting of the commissioners
appointed by the county court to examine the highway. The
notice need not specify courses and distances. It should give the
termini and general route of the proposed road.
The notice may be in the following form:
Notice is hereby given that the undersigned has made application to the
commissioners of highways of the town of... . . . . . . . . . . . . . . . . , in the county of
* * g is e º e º º is tº e º 'º e , for the laying out (altering or discontinuing) of a highway in
said town, commencing (here insert description as in application) which pro-
posed highway (or alteration) will pass through the lands of (describe who), and
by an Order of the county court dated the....day of . . . . . . . . . . . . . , 18. ..., SS,
G. G. and J J were appointed commissioners to certify as to the neccessity of
said proposed highway (alteration or discontinuance), and to assess the damages
by reason of the laying out and opening (alteration or discontinuance) of such.
highway; and that said commissioners will all meet at... . . . . . . . . . . . . in said
town, on the....day of... . . . . . . . . . . . . , 18. ..., at. ...o’clock in the . . . . . . noOn,
to examine the proposed highway (or the highway) and hear the commissioners
of highways and all others interested therein, and to assess the damages if such
highway be determined to be necessary (or is altered or discontinued).
Dated this ...day of. . . . . . . . . . . . . . . . , 18. . . .
L. M.
156 HIGHWAY MANUAL OF NEW YORK.
$15. Service of notice.—At least eight days before the meeting of
such commissioners, such notice must be personally s?rved on the
owner and occupant of the land over which the highway is to pass,
if such owner and occupant are residents of the town or service
Gan be made by leaving a copy at their residence with a person
of mature age. If the owner or occupant of such land does not
reside in the same town, or service can not be made, a copy of such
notice must be mailed to such owner and occupant, if their post-
office address is known to the applicant or can be ascertained by
him. On reasonable inquiry. (H. L., § 85, p. 29.) The notice must
be served on the owner and occupant of the land. Notice is neces-
sary to give the commissioners jurisdiction to act; and an order
laying out a road without the notice is void for want of
jurisdiction. (Peo. ex rel. Odle v. Kniskern, 54 N. Y., 53; Peo. ex
rel. Wells v. Brown, 47 Hun, 459.) A
The following affidavit of service should be made:
STATE OF NEW YORK, }ss *
within is a copy, to be posted up at . . . . . . . . . . . . , at . . . . . . . . . . and . . . . . . . . . . 2
three public places in the town of . . . . . . . . . . . . , Said county, on the . . . . day
of . . . . . . . . . . . . , 18. , , and that he served a like notice on (name all the owners
and occupants of the lands through which the highſway is proposed to be laid
out, (altered or discontinued) on the . . . . day of . . . . . . . . . . . . , 18.., by (state
how served), and that said notices were posted at the respective places, and
served on the respective persons herein named, at least eight days before the
time specified therein for the meeting of Said commissioners.
L M.
Subscribed and sworn to before me, |
this . . . day of... . . . . . . . . , 18. .
G. H.,
Justice of the Peace.
§ 16. Proceedings of commissioners.-Such commissioners must
appoint a time and place at which they will all meet to hear
the commissioners of highways of the town where such highway
is situated and other persons interested in the highway. Such
meeting shall not OGour until at least eight days after their
appointment. A meeting at which only two of such commis-
sioners attend is a legal meeting. The commissioners must per-
Sonally examine the highway described in the application and
Highway MANUAL OF NEw YorF. 157
f
hear any reasons that may be offered for or against the laying out,
altering or discontinuing of such highway and assess all dam-
ages by reason thereof. They may adjourn the proceedings before
them, from time to time, issue subpoenas and administer oaths in
such proceedings.
The subpoena may be in the following form:
The People of the State of New York to L L and O O:
You and each of you are hereby commanded to be and appear before us,
commissioners appointed by the county court of... . . . . . County, at the........ y
in the town of . . . . . . . . . . on the....day of... . . . . . . . , 18. ..., at. ...o'clock in
the...... noon, to testify and give evidence in the matter of laying out (altering
or discontinuing) a highway and assessing the damages therefor, in the town
of. . . . . . . . . . . . , then and there to be heard and determined.
Dated this. . . . . . day of. . . . . . . . . . . . , 18. . . .
A. A.,
B B,
D D,
Commissioners.
The following oath should be administered to witnesses:
You do solemnly swear that the evidence you shall give touching the neces-
sity of laying out (altering or discontinuing) the highway in question, and
assessing the damages therefor (or as the case may be), shall be the truth, the
whole truth and nothing but the truth, so help you God.
Such commissioners must keep minutes of their proceedings
and reduce to writing all oral evidence given before them on the
subject of the assessment of damages. They must make dupli-
cate certificates of their decision, and file one in the town clerk's
office of the town. The other certificate, together with the min-
utes and evidence taken by them, must be filed in the county
clerk's office of the county in which the highway or proposed
highway is located. Each commissioner is entitled to six dollars
and his necessary expenses for each day he is necessarily employed
as such commissioner. (H. L., §§ 84, 92, pp. 29, 32.)
$17. Decision in favor of application.—If the decision is in favor
of the application, the commissioners must assess the damages
caused the owners of the land by reason of the laying out, alte-
ration or discontinuing of such highway. Duplicate certifi-
cates of the decision must be made and one copy filed in the
town clerk’s office, and the Other, with the minutes and evidence
taken by the commissioners in the county clerk's office. (H. L.,
$ 86, p. 30.)
158 HIGHWAY MANUAL OF NEW YORK.
The certificate may be in the following form:
the....day of. . . . . . . . . . . . . . . . , 18...., on the application of L M, having been
appointed commissioners to certify as to the necessity of laying out and open-
ing (altering or discontinuing) a highway in the town of . . . . . . . . . . in said
county, beginning (describe highway as in the application) which proposed
highway (or highway) crosses the lands of (name the persons) and to assess the
damages to be caused thereby; now, therefore, we, the said commissioners,
having given due notice of the time and place at which we would meet, and all
having met at. . . . . . . . . . in said town on the....day Of... . . . . . . . 18. ..., pursuant
to such notice, and having taken the constitutional oath of office, and on proof
of the service and posting of the notices by the applicant, pursuant to section
85 of the highway law, having viewed the proposed highway (or alteration or
highway proposed to be discontinued) and the lands through which it is pro-
posed to be laid out and opened (altered or discontinued) and having heard all
the allegations of the commissioners of highways and the parties interested
therein, and the evidence of all the witnesses produced, do thereupon certify,
that in our opinion it is necessary and proper that the highway be laid out and
opened (altered or discontinued) pursuant to the said application of L M, dated
the ...day of. . . . . . . . . . 18..; and we have assessed the damages required to be
assessed by reason of laying Out and opening (altering" or discontinuing) such
highway as follows:
The damages of N N at $... . . . . ; the damages of W W at $. . . . . . . .
Dated this....day Of... . . . . . . . 18. . . . . . .
S S,
G. G.,
J. J.
Commissioners.
The decision of two commissioners is necessary to affirm or deny
the application.
In the assessment of such damages the benefits derived from the
exclusive use of lands reverted by reason of the discontinuance of
another highway through other portions of the same party's land,
must be deducted. The determination of the commissioners must
be confined to the highways applied for, but they are not limited to
the precise route specified in the application. They may make
such variations as they deem proper. The general course of the
road, however, must be preserved.
The certificate which the commissioners are required to make
will sufficiently conform to the statute, if, in the description of the
highway, a single line is given with the courses and distances.
Inasmuch as the highway is required to be three rods in width, an
order laying out a road is sufficiently explicit if it specifies the
HIGHw AY MANUAL OF NEw York. 159
central line. The certificate of the commissioners will be sufficient
if it state where the highway commences and where it ends, and
its route by courses and distances. It is advisable, however, that
all the bounds and width, as well as the courses, be particularly
stated, to avoid uncertainty and controversy.
$18. Decision denying application.—If a majority of the commis-
sioners appointed by the county court determine that the proposed
highway or alteration is not necessary, or that the highway pro-
posed to be discontinued is not useless, they must make duplicate
certificates to that effect, one of which must be filed in the town
clerk's office, and the other with the minutes and evidence taken
by them in the county clerk's office. (H. L., § 88, p. 30.) Such
certificate may be in the following form:
dated the....day of... . . . . . . . . . . . . . , 18. ..., on the application of LM, having
been appointed commissioners to certify as to the necessity of laying out and
opening (altering or discontinuing) a highway in the town of... . . . . . . . in said
county, beginning (describe highway as in the application) which proposed
highway (or highway) crosses the lands of (name the persons) and to assess the
damages to be caused thereby; now, therefore, we, the said commissioners,
having given due notice of the time and place at which we would meet, and
all having met at. . . . . . . . . . in said town on the....day of... . . . . . . . 18. ..., pur-
suant to such notice, and having taken the constitutional oath of office, and on
proof of the service and posting of the notices by the applicant, pursuant to
section 85 of the highway law, having viewed the proposed highway (or altera-
tion or highway proposed to be discontinued) and the lands through which it
is proposed to be laid out and opened (altered or discontinued) and having
heard all the allegations of the commissioners of highways and the parties
interested therein, and the evidence of all the witnesses produced, do thereupon
certify, that in our opinion such highway, or alteration or discontinuance, is
unnecessary and improper and should not be laid out (or should not be made,
or such highway should not be discontinued).
Dated this....day of . . . . . . . . . . 18. . .
S S,
G. G.,
J J,
Commissioners.
$19. Motion to confirm, vacate or modify.—Within thirty days
after the decision of the commissioners is filed in the town clerk's
-office, any party interested in the proceedings may apply to the
court appointing such commissioners, for an order confirming,
vacating or modifying their decision, and such court may confirm,
vacate or modify the same. (H. L., § 89, p. 30.)
160 HIGHw AY MANUAL OF NEW YORK.
The party making such application must give to the adverse
parties in the proceeding, at least eight days' notice of his inten-
tion to make the application.
$20. Proceedings on motion to confirm.—The following is a copy
of the notice which should be served on the adverse parties where
the motion is made to confirm the decision of the commissioners:
COUNTY COURT.— . . . . . . . . . . . . . . . . . . COUNTY.
IN THE MATTER OF THE APPLICATION OF L M TO LAY OUT (ALTER OR DISCON-
TINUE) A HIGHWAY IN THE TOWN OF... . . . . . . . . . , AND THE ASSESSMENT OF
DAMAGES THEREFOR.
TO N M CºmC. W. W.;
Take notice that an application will be made to this court at a . . . . . . . . term
thereof, to be held at the . . . . . . . . . . in the . . . . . . . of . . . . . . . . . . , on the
gº tº º º & © e º 'º º day of . . . . . ..., 18.., for an Order confirming the decision of the
commissioners in the above entitled matter, which decision is dated the . . . . . . .
day of . . . . . . . . . . , 18. ., and for such other and further relief as to the court
may seem proper; that said application will be made upon said decision and
upon the affidavits and papers, with copies of which you are here with served.
Dated this . . . . day of . . . . . . . . . . . . , 18...
L M.
If the county court confirm the decision of the commissioners,
the order may be made in the following form:
At a term of the . . . . . . . . . . . . County Court, held at the. . . . . . . . in the . . . . . . . . . o
of. . . . . . . , on the....day of. . . . . . . . . . . . , 18. . . .
Present—Hon. E E, county judge.
COUNTY COURT.— . . . . . . . . . . . . . . COUNTY.
IN THE MATTER OF THE APPLICATION OF L M TO LAY OUT (ALTER OR DIS-
CONTINUE) A HIGHWAY IN THE TOWN OF. . . . . . . . . . . . , AND THE ASSESS-
MENT OF DAMAGES THEREFOR.
On reading and filing the decision of the commissioners, S S, G. G. and J J, in
the above entitled matter, dated the....day of... . . . . . . . , 18. ..., by which it
appears (state substance of decision), with proof of due service upon N N and
W W of notice of this application and (state other papers), and on motion of
A D, counsel for LM, after hearing B B, counsel for N N and W W, opposed,
and on reading (name the papers), it is hereby ordered that the said decision be
and the same is hereby confirmed.
E E,
Cownty Judge,
If the application be to lay out a highway, and the commis-
sioners appointed by the county court decide that such proposed
HIGHWAY MANUAL OF NEw York. 161
highway is necessary and proper and should be laid out and
opened, and their decision has been confirmed by the county
Court; or where the decision of such commissioners is final and
no motion has been made to confirm, vacate or modify it,
the commissioners of highways should lay out such highway
in accordance with such decision, by filing and recording in the
town clerk's office, the following certificate:
WHEREAS, LM did present to us as commissioners of highways of the town
of . . . . . . . . . . . . , in the county of . . . . . . . . . . . . , a written application dated the
. . . . day of . . . . . . . . . . . . , 18.., to lay out a highway in said town; and,
whereas, commissioners were appointed by the county court of said county,
pursuant to section 84 of the highway law, and after having duly met, certified
that Such proposed highway was necessary and proper and should be laid out
and opened, and assessed the damages therefor; and the said court having
confirmed the decision of said commissioners (or no motion having been made
to the county court to confirm, vacate or modify such decision) which said
application, orders and certificate (or other papers) were duly filed in the office
of the town clerk of said town, to which reference is here made.
Now, therefore, we, the undersigned commissioners of highways of said
town, pursuant to section 89 of the highway law, do hereby lay out such high-
way as so applied for and ordered, whereof a survey has been made as follows:
Beginning (here insert survey bill) and the line of such survey shall be the
center of the highway, which is to be . . . . . . . . rods in width.
Dated this . . . . day of . . . . . . . . . . . . , 18 . . .
A B,
C D,
E F,
Commissioners of Highways.
The court may in its discretion, allow costs on this motion, not
exceeding fifty dollars. (H. L., § 152, p. 45.)
$21. Proceedings on motion to vacate or modify.—If the applica-
tion be to vacate or modify the decision of the commissioners
appointed by the court, the following notice should be served on
the adverse parties at least eight days before motion is made:
COUNTY COURT.— . . . . . . . . . . . . . . . . COUNTY.
IN THE MATTER OF THE APPLICATION OF L M TO LAY OUT (ALTER OR DISCON-
TINUE) A HIGHWAY IN THE TOWN OF ............ , AND THE ASSESSMENT
of DAMAGES THEREFOR.
To N M Cºd W W:
Take notice that an application will be made to this court at a . . . . . . . . term
thereof to be held at the . . . . . . . . . . . . in the . . . . . . . . of . . . . . . . . , on the . . . . . .
day of . . . . . . . ., 18..., for an order vacating (modifying or correcting, in the
21
162 HIGHWAY MANUAL OF NEw York.
following particulars stating them) the decision of the commissioners in the
above entitled matter, which decision is dated the . . . day of . . . . . . . . . . . . 2
18.., with costs on this motion, and such further relief as the court may deem
proper. That such application will be made upon said decision and the affi-
davits and papers, with copies of which you are herewith served.
Dated this . . . . day of . . . . . . . . . . . . , 18..
L M.
If the court vacate or modify the order of such commissioners
the following order should be made by the court:
At a term of the . . . . . . . . . . . . County Court, held at the . . . . . . in the... . . . . . . .
Present—Hon. E. E., county judge.
IN THE MATTER OF THE APPLICATION OF L M, TO LAY OUT (ALTER OR DIS-
CONTINUE) A HIGHWAY IN THE TOWN OF. . . . . . . . . . . . . , AND THE ASSESS-
MENT OF DAMAGES THEREFOR.
On reading and filing the decision of the commissioners SS, G. G. and J J, in
the above entitled matter, dated the....day of....... . . . . . . . , 18. ..., by which
it appears (state the substance of decision), with proof of due service upon NN
and W W of notice of this application and (state other papers), and on motion
of AID, counsel for LM, after hearing B B, counsel for NW and WW opposed,
and on reading (name the papers), it is hereby ordered that the said decision be
and the same is hereby vacated (or modified or corrected as follows: State how;
or that a new hearing be had before the same or other commissioners to be
named herein), with $... costs of this motion to. . . . . . . . . . against. . . . . . . . . . . .
E E,
County Judge.
If the decision be vacated, the court may order another hearing
of the matter before the same or other commissioners. If no
such motion is made the decision of the commissioners shall be
deemed final. If the final decision shall be adverse to the appli-
cant, no other application for laying out, altering or discontinuing
such highways shall be made within two years. (H. L., § 89, p. 30.)
The court may in its discretion allow costs of such a motion but
such costs shall not exceed fifty dollars. (H. L., § 152, p. 45.)
§ 22. Limitations on laying out highways.-No highway can be
laid out through any of the following tracts or parcels of land
without the consent of the owner or owners or without an order
of the county court of the county in which the proposed highway
is located:
HIGHwAY MANUAL OF NEW YORK. 163
1. An orchard of the growth of four years or more, except in
the counties of Westchester and Putnam. In Westchester and
Putnam counties the consent of the owner is not necessary.
(L. 1834, chap. 300.)
2. A garden cultivated as such for four years or more.
3. A grape vineyard of one or more years growth, except in
the towns of Urbana and Wayne, in Steuben county, and used
in good faith for vineyard purposes before the application for
laying out the highway is made.
4. Buildings, or any fixtures or erections for the purposes of
trade or manufactures, or any yard or inclosure necessary to the
use and enjoyment thereof made and placed on such land before
the application for laying out the highway is made.
5. Burying-grounds.
6. Lands held by soldiers’ monument associations, except by
special permission of the legislature. (L. 1866, chap. 273, § 6.)
7. Lands dedicated to cemetery purposes, except by special
permission of the legislature. (L. 1847, chap. 133.)
No private road or highway shall be laid out or constructed
upon or through any burying-ground, unless the remains con-
tained in such burying-ground are first carefully removed and
properly reinterred in some other burying-ground at the expense
of the persons desiring such road or highway.
The highway commissioners are prohibited from laying out a
road or highway only through such yards or inclosures as are
necessary to the use and enjoyment of buildings, fixtures or erec-
tions, used for the purpose of trade or manufacture.
A highway can not be laid out ovér grounds acquired by a rail-
road corporation for the site of an engine-house and yards neces-
sary for its use at a station. (Albany N. R. R. Co. v. Brownell, 24
N. Y., 345)
Nor across a beach taken as the terminus of a railroad to the
sea beach for station purposes. (Pros. PR & C. I. R. R. Co. v. Wil-
liamson, 91 N. Y., 552.)
§ 23. Consent of owner.—The commissioners have no jurisdic.
tion to lay out a road through any of such lands without either the
consent of the owner or without the order of the county court of the
county in which the proposed highway is located.
164 HIGHWAY MANUAL OF NEW YORK.
The consent of the owners may be in the following form:
WHEREAS, LM has made application in writing to the commissioners of high-
ways of the town of . . . . . . . . . , in the county of . . . . . . . . . . , dated the....day
of. . . . . . . . . . , 18.., to lay out a highway in said town beginning at (insert
description), and which said highway will pass through my orchard.
Now, therefor, I do hereby consent that such highway be so laid out, opened,
worked and used through my said orchard; but this consent shall not be con-
strued as a waiver or release of my claim for damages, by reason thereof.
Dated the....day of . . . . . . . . . . , 18. . .
T W.
If the highway commissioners undertake to lay out a highway
through any of such lands without such consent or Order, they and
their agents are trespassers. The certificate of twelve freeholders
that such highway is necessary is no longer required.
Where the owner of the land through which the highway is pro-
posed to be located consents to the laying out of such highway, the
highway commissioners may lay out such highway without an
Order of the court.
Their certificate may be in the following form:
WHEREAS, L. M. did, on the....day Of... . . . . . . . ..., 18.., present to us as
commissioners of highways of the town Of... . . . . . . , in the County of, . . . . . . . .
a written application to lay out a highway in Said town, passing through an
orchard of TW, of the growth of four years or more, and the said TW having
consented that such highway be so laid out.
Now, therefore, we, the undersigned commissioners of highways, pursu-
ant to section 90 of the highway law, do hereby lay out said highway, as so
applied for, whereof a survey has been made as follows: Beginning (insert
survey bill) and the line of survey is to be the center of the highway which is
to be. . . . . . rods in width.
A B,
C D,
E F,
Commissioners of Highways.
The commissioners must cause a survey to be made which
shall be incorporated in their certificate and which shall be made
at the expense of the town. The highway so laid out shall not
be less than three rods in width. The certificate, including a
copy of the survey shall be filed in the town clerk's office.
|HIGHWAY MANUAL of NEw YorF. 165
The commissioners may lay out a road through any kind of
property with the consent of the owner. The oral consent of the
owner to the laying out of a highway through his orchard, vine-
yard, garden, ſixtures, etc., is sufficient provided the commis-
sioners act upon it immediately and the road is laid out before
such consent is revoked. Such oral consent may be revoked.
A sale and conveyance of the land in good faith before the
road is laid out would operate as a revocation. If the commis-
sioners have acted on the faith of the verbal consent, by laying
out the road, the owner will be estopped from denying the legality
of the act, (Marble v. Whitney, 28 N. Y., 297.)
§24. Proceedings where ownerrefuses consent—If the consent of
the owner or owners can not be obtained the party in favor of
laying out such highway shall within thirty days after applying
to the highway commissioners make a further application to the
county court for the appointment of three commissioners to deter-
mine upon the necessity of such highway proposed to be laid out
and to assess the damages caused by reason of the laying out of
the same. Such petition shall be verified and shall be in the form
prescribed on page 153. The order appointing such commis-
sioners shall be the same as that prescribed on page 154, and the
qualifications, powers and duties of such commissioners shall be
the same as those of commissioners appointed by the order
given on page 154. After such commissioners have rendered a
decision in favor of the application and assessing the damages
caused thereby, the county court shall not make an order to lay
out such highway unless the highway commissioners shall certify
to the county court that the public interest will be greatly pro-
moted by the laying out and opening of such highway and that
the commissioners appointed by the court have certified that it is
necessary. The certificate of the highway commissioners may
be in the following form:
COUNTY COURT,-. . . . . . . . . . . . . . . . COUNTY.
To the County Court of . . . . . . . . . . . . . . . . County:
The undersigned, commissioners of highways of the town of . . . . . . . . . . . . , in
said county, hereby certify that on the . . . . day of . . . . . . . . . . . . , 18. ..., L M,
166 HIGHwAY MANUAL OF NEw YorF.
who is liable to be assessed for highway labor in said town, made a written
application to us as such commissioners to lay out a highway in said town,
passing through an orchard of TW, of the growth of four years or more, pur-
suant to section 90 of the highway law, as follows: (insert a copy of the appli-
cation). And that the said T W does not consent thereto; that the following
proceedings were had upon such application: (insert a history of the proceed-
ings up to and including the decision of the commissioners appointed by the
courts). We further certify that the public interest will be greatly promoted
by the laying out and opening of such highway through said orchard; and
commissioners appointed by this court have certified that such highway is
necessary and proper, and have assessed the damages of T W by reason thereof,
at $ . . . . . . . .
Dated this . . . . day of . . . . . . . . . . . . , 18 . . .
A B,
C D,
E F,
Commissioners of Highways.
A copy of the certificate, with eight days' notice of the time
and place of the hearing before the county court, shall be served
on the owners of the land, or, if they are not residents of the
county, upon the occupants. The notice of the time and place
may be in the form prescribed on page 160.
$25. Order of county court; where owner refuses consent.—The
county court upon such certificates, and the proofs and other
proceedings therein, may order the highway to be laid out and
opened, if it deems it necessary and proper. Such order may be
in the following form:
At a term of the. . . . . . . . . . . . . . . . county court, held at... . . . . . . . . . . . . . . , in the
* e º tº º e g º º tº of. . . . . . . . . . . . . ., on the....day of. . . . . . . . . . . . . . . . , 18. . . .
Present — Hon. E. E., county judge.
IN THE MATTER OF THE APPLICATION OF L M, TO LAY OUT A HIGHWAY IN THE
TOWN OF. . . . . . . . . . . . . . . , AND THE ASSESSMENT OF DAMAGES THEREFOR.
Upon reading and filing the certificate of A B, C D and E F, commissioners
of highways of the town of . . . . . . . . . . . . . . , in the county Of... . . . . . . . . . , dated
the....day of. . . . . . . . . . . . . . . . , 18. . . . , stating (here state the substance of the
facts in the certificate) with proof of due service of notice of this motion, and
upon reading the (state what papers), and after hearing A D, of counsel for the
applicant, and B B, of counsel for TW, opposed, it is hereby ordered that said
highway be laid out and opened pursuant to section 90 of the highway law,
with ten dollars cost of this motion. E
E,
County Judge.
HIGHWAY MANUAL OF NEW YORK. 167
$26. Proceedings before general term.—The commissioners of
highways shall then present the order of the county court, with the
certificate and proof upon which it was granted, certified by such
court to the General Term of the Supreme Court, in the judicial
department in which the land is situated. At least eight days
before such hearing, a notice of motion shall be served upon the
owner or occupant or the attorney who appeared for them in the
county court. The notice of motion may be in substantially the
same form as that on page 161.
If the General Term of the Supreme Court shall confirm the
order of the county court, the order may be made in the following
form:
At a General Term of the Supreme Court, in the... . . . . . . . . . department, held
at the court-house in the city of . . . . . . . . On the....day of . . . . . . . . 18. . .
Present — EIon. A R, P. J.; Hon. B D, Hon. C. E., Justices of the Supreme
Court.
IN THE MATTER OF THE APPLICATION OF L M, TO LAY OUT A HIGHWAY IN THE
TOWN OF. . . . . . . . . . , AND THE ASSESSMENT OF DAMAGES THEREFOR.
A B, C D, and E F, as commissioners of highways of the town of . . . . . . . . . .
in the county Of... . . . . . . . , having presented to us the order of the county
court of... . . . . . . . . county, dated the....day of... . . . . . . . , 18. . , that a highway
be laid out in said town, passing through the orchard of T W., of the growth of
four years or more, pursuant to section 90 of the highway law, the said TW
not consenting thereto, with the certificate and proofs upon which the said
order was granted, duly certified by such court, with proof of due service of
notice of this motion, on the said T W., and after hearing B B, of counsel for
the applicant, on the motion, and X B, of counsel for T W., opposed, it is
hereby ordered that the said order of such county court be, and the same is
hereby confirmed, with $ ... costs of this motion.
$27. Certificate of highway commissioners.-After the order of
the county court in favor of the application has been confirmed by
the General Term of the Supreme Court, the commissioners of
highways shall make the following certificate:
WHEREAS, L. M. did, on the . . . . day of . . . . . . . . . , 18. . , present to us as com-
missioners of highways of the town of . . . . . . . . . . , in the county of . . . . . . . . . . y
a written application to lay out a highway in said town, passing through an
orchard of TW, of the growth of four years or more, and such proceedings
having been had thereon, pursuant to section 90 of the highway law, that the
county court of said county has ordered said highway to be laid out and
opened, which said order has been duly confirmed by a general term of the
Supreme Court in the . . . . . . . . department, which said application, certificates
and orders and other papers in said proceedings are duly filed in the office of
the town clerk of said town, to which reference is here made.
168 HIGHWAY MANUAL of NEw YoFE.
Now, therefore, we, the undersigned commissioners of highways, pursuanº
to section 90 of the highway law, do hereby lay out said highway as so applied
for and ordered, whereof a survey has been made as follows: Beginning (insert
survey bill) and the line of Survey is to be the center of the highway, which is
to be . . . . rods in width.
Dated this . . . day of . . . . . . . . . . . . , 18 . . .
A B,
C D,
E F,
Commissioners of Highways.
$28. Damages.—The Constitution prohibits the taking of private
property for public use without just compensation and provides
that when private property is taken for any public use, the com-
pensation to be made therefor, when such compensation is not
made by the State, shall be ascertained by a jury or by not less
than three commissioners appointed by a court of record. (N. Y.
State Const., art. 1, §§ 6, 7, p. 67.)
Under the highway law, the damages are assessed by three com-
missioners appointed by the county court except where a private
road is to be laid out, in which case the damages are to be assessed
by a jury consisting of six freeholders residing in the town who are
not interested in the lands in question and are not related to the
applicant, owner or occupant, or either of them. The Constitution
further provides that “private roads may be opened in the manner
to be prescribed by law; but in every case the necessity of the
road and the amount of all damages to be sustained by the open-
ing thereof shall be first determined by a jury of freeholders, and
such amount, together with the expenses of the proceeding, shall
be paid by the person to be benefited.” The damages shall be
appraised before the lands are taken for highway purposes, but
such damages need not be paid or offered to be paid before such
highway is laid out. (Bloodgood v. M. & EI. R. R. Co., 14 Wend., 51.)
§ 29. How assessed.—The application must be made to the court
and not to the judge. Notice of the application need not be given to
the owner or occupant of the land, but notice shall be given eight
days before the commissioners meet to determine the necessity of
such highway and to assess the damages caused thereby. The
commissioners must take the constitutional oath before commenc-
HIGHWAY MANUAL OF NEW YORK. 169
ing their proceedings. The taking of such oath is necessary to give
them jurisdiction and the parties to the proceeding have no right
to waive such an omission because the whole town has an interest
in the proceedings. (People v. Connor, 46 Barb., 333.)
$30. Damages allowed.—In estimating the damages to be assessed,
the value of the land taken is not restricted to its agricultural or
productive qualities. Every purpose for which the property might
be used should be considered and the compensation made should
equal the damage sustained. Remote, contingent or speculative
damages should not be considered by the commissioners, but they
are not confined in making their appraisal to the actual value of
the land to be taken, but may consider how the laying out and
opening of the road will effect the remainder of the owner's land.
If the remainder is left in an inconvenient and unmarketable
shape, that fact may be considered in determining the compensa-
tion. (Albany Northern R. R. Co. v. Lansing, 16 Barb., 68.)
In assessing the damages the commissioners should determine
the effect of the proposed change upon the market value of the
property, the market value of the premises before the change and
what their market value will be after the change. The question
is not what estimate the owner places upon the lands, but what
their real worth is in the judgment of honest, competent and dis-
interested men. (In the matter of Furman street, 17 Wend., 649.)
§ 31. To whom allowed.— Damages Ought to be assessed Sepa-
rately to lessor and lessee; but if a gross sum be awarded to the
owner, the tenant may recover his proportion from the owner.
Where there are conflicting claims of title, the damages should be
awarded to “owners unknown.” (Matter of opening Eleventh
avenue, 49 How. Pr., 208.)
The deduction can only be made when the old road is discon-
tinued by reason of the laying out of another road hrough the
lands of the same person. Such an award, When confirmed by
the Supreme Court, is conclusive and no question can be subse-
quently raised, except as to whom such owners are. The amount
of their interest is immaterial. (In the Matter of Department of
Parks, 73 N. Y., 560)
wº 22
170 HIGHWAY MANUAL OF NEW YORK.
When the damages have been finally assessed, the owner's
right to them can not be taken away by statute, or by a discon-
tinuance of the highway. (People v. Supervisors of YWestchester,
4 Barb., 64.) But where the proceedings for laying out the
highway were void from the commencement, the person to whom
damages have been paid has no right to retain such damages and
those taxpayers from whom the money has been collected, may
recover from him, but the town in its corporate capacity can not
maintain an action to recover back such money. (Town of Galla-
tin W. Loucks, 21 Barb., 578.)
The commissioners should make their award in writing, and
file and record the same in the town clerk’s Office of the town
where the highway is to be located.
§ 32. Damages fixed by agreement.—Where the owner consents
to the laying out of a highway over his lands, the commissioners of
highways may enter into an agreement with such owner as to
the amount of damages to which such owner is entitled. In
Such case, the amount of damages thus agreed upon, shall not
in any one case from one claimant, exceed $100 and from all
claimants, $500. The owner shall there execute a release which
shall be filed and recorded by the commissioners of highways, in
the town clerk's office. Such release should be signed, sealed
and acknowledged, and when executed, shall forever preclude
the owner from claiming further damages. The vendor under an
executory contract of sale, and not the vendee, may enter into
such agreement with the commissioners of highways. (Smith v.
Ferris, 6 Eſun, 553.) No one but the owner of land is entitled
to damages. The Occupant or tenant has no claim.
§ 33. Survey. —Whenever the highway commissioners shall lay
Out a highway, either upon application to them or otherwise, they
shall cause a survey of such highway to be made, and shall incor-
porate the survey in the order made by them laying out the high-
way. (H. L., § 81, p. 28.)
The failure to incorporate the survey in the order renders the
order invalid. (Pratt v. The People, 13 Hun, 664)
HIGHWAY MANUAL of NEw York. - 171
The survey must be filed and recorded with the order, and the
town clerk must note the time of recording the survey. It is a
sufficient survey to run a single line which will be intended as
the center of the road unless something appears on the record of
the commissioners to show a different intention. The width of
the highway can be ascertained by a specification of the quantity
of land which the road will take from each proprietor over whose
grounds it passes.
The town clerk can not refuse to record the survey because of
some supposed omission or mistake in the name of one of the
commissioners, or because the commissioners had not taken the
constitutional Oath of Office and filed a certificate of the oath.
The clerk may be compelled by mandamus to record the survey.
(People v. Collins, 7 John, 594.)
§ 34. Width of road.—No highway shall be laid out less than
three rods in width. (H. L., § 90, p. 31.) This applies only to
roads laid out by the commissioners.
Where roads are laid out by the highway commissioners, they
will be deemed to be at least three rods wide, and a person will
be liable for an obstruction within that width.
All public highways are to be laid out not less than three rods
wide. Where no greater width is specified in the order, the fair
presumption would be that it should not exceed the minimum,
and the opening to a greater width could not be enforced against
the owners of the land through which the road is laid. (Wells v.
Brown, 47 Hun, 459.)
§ 35. Description of route.— In the order made by the commis.
sioners, any description which designates the route of the road
and shows that the assessment was for damages thereon, is
sufficient. (Hallock v. Woolsey, 23 Wend., 328.)
The commissioners are not bound by the route stated in the
petition, but a departure from such route must not be so great as
to warrant that the preliminary proceedings have been wholly
disregarded. (Cook v. Hildreth, 24 N. Y. State Rep’r, 458.)
It seems that if an error happen in the description of a road
laid out, the officers laying out the same may be required by
172 Highway MANUAL of New York.
mandamus to file a new certificate, and give a description con-
formable to the facts of the case. (Woolsey v. Tompkins, 23
Wend., 324.)
§ 36. Fences to be removed.—Before a highway is laid out through
any inclosed, cultivated or improved lands, the highway com-
missioners shal give to the owner or occupant of the land through
which such highway is to be laid, sixty days' notice in writing
to remove his fences. If the owner shall not remove his fences
within such sixty days, the commissioners shall cause them to be
removed and shall direct the highway to be opened and worked.
(H. L., § 101, p. 35.)
§ 37. Highways or roads along division lines.—Whenever a high-
way or private road shall be laid along the division line between
lands of two or more persons, and wholly upon one side of the line,
and the land upon both sides is cultivated or improved, the per-
sons owning or occupying the lands adjoining such highway or
road, shall be paid for building and maintaining such additional
fence as they may be required to build or maintain, by reason of
the laying out and opening such highway or road. Such damages
shall be ascertained and determined in the same manuer that
other damages are ascertained and determined in the laying out
of highways or private roads. (H. L., § 122, p. 39.)
$38. Costs, by whom paid.—Where the commissioners appointed
by the court to lay out, alter or discontinue a highway, assess
damages in favor of the applicant, the cost of the proceeding must
be paid by the town. If, however, such commissioners decide
against the application, no direct provision appears to be made
by the highway law for the compensation of such commissioners.
The code of civil procedure, however, provides that costs in a
special proceeding instituted in a court of record where not
specially regulated may be awarded to any party in the discretion
of the court at the rates allowed for similar services in an action
brought in the same court.
As the code of civil procedure likewise defines a special proceed-
ing to be every prosecution, other than the ordinary action, by a
party against another party for the enforcement or protection
HIGH way MANUAL OF NEW YORK. 173
of a right, the redress or prevention of a wrong, or the punishment
of a public offense, it would seem that this proceeding to lay out,
alter or discontinue a highway comes within such definition and
that the court may, therefore, in its discretion, award costs to
either party where the commissioners decide against the
application.
$39. Costson reassessmentofdamages.—If the party for whom
the damages were assessed makes application to have such damages
reassessed, and such damages are not increased on the reassess-
ment, the costs shall be paid by the party applying for the
reassessmeni. When application is made by two or more persons
for the reassessment of damages and no increase is made on the
reassessment, such persons shall be liable for costs in proportion
to the amount of damages respectively assessed to them by the
first assessment. Such costs may be recovered by action in favor
of any person entitled to the same.
$40, Damages assessed and costs to be audited.—All damages to
be agreed upon, or which may be finally assessed, and costs
against the town, as herein provided, shall be laid before the
board of supervisors, by the supervisor of the town, to be audited
with the charges of the commissioners, justices, surveyors, or
other persons or officers employed in making the assessment, and
for whose Services the town shall be liable, and the amount shall
be levied and collected in the town in which the highway is situ-
ated, and the Imoney so collected shall be paid to the commis.
sioners of highways of such town, who shall pay to the owner
the sum assessed to him, and appropriate the residue to satisfy the
charges aforesaid. (H. L., § 93, p. 32.)
$41. Adjournments.-If any accident shall prevent any of the
proceedings, relating to the laying out, altering or discontinuing of
a highway, or the laying out a private road, to be done on the day
assigned, the proceedings may be adjourned to gome other day,
and the commissioner shall publicly announce such adjournment.
(H. L., § 123, p. 39.)
Commissioners appointed by the court to lay out a highway may
also adjourn the proceedings before them, from time to time.
174 HIGHway MANUAL OF NEW YORK,
$42. Papers, where filed.—All applications, certificates, appoint
ments and other papers relating to the laying out of a highway
shall be filed by the commissioners of highways in the town clerk’s
office of their town as soon as a decision shall have been made.
(H. L., § 150, p. 44.)
$43. Costs on motion.—Costs of any motion made in a proceed
ing in a court of record, other than a motion to confirm, vacate or
modify the report of commissioners appointed by the court to lay
out, alter or discontinue a highway, may be allowed in the discre.
tion of the court, but such costs shall not exceed ten dollars.
On a motion to confirm, vacate or modify the report of commis-
sioners appointed by the court to lay out, alter or discontinue a
highway, the court may in its discretion allow costs not to exceed
fifty dollars. (H. L., § 152, p. 45.)
II. PRIVATE ROADS.
Section 1. Definition.
2. By necessity.
3. By prescription.
4. By grant.
5. Application to highway commissioners.
6. Jury to determine necessity and assess damages.
7. Application and notice delivered to applicant.
8. Service of application and notice.
9. Selection of jurors.
10. Summoning jury and place of meeting.
11. Selection of additional jurors.
12. Proceedings of jury.
13. Value of highway discontinued and verdict of jury.
14. Papers to be recorded in town clerk's office.
15. Damages to be paid before opening road.
16. Motion to confirm, vacate or modify.
17. Costs of new hearing.
18. Purposes for which private road may be used.
Section 1. Definition.—A private way is a way over another
person's land over which one person, or a particular description
of persons may pass in Some particular line.
HIGHwAY MANUAL OF NEW YORK. 175
Private ways may arise:
1. By necessity.
2. By prescription.
3. By grant.
4. By statutory proceeding.
§ 2. By necessity.—It is a well established principle of law, that
where lands are granted to a man, he is entitled to a passage-Way
to and from such lands. If one party sell to another, land which
is inclosed on all sides, the party to whom such a conveyance is made
may pass over the lands of his grantor in going to and coming
from his own lands. This right of way, however, must be strictly
necessary and its necessity must not be created by the party claim-
ing the right of way. It does not exist where a man can reach
his property through his own land. A right of way thus created
by necessity continues no longer than the existence of the neces-
sity which created it.
The fact that the way continues to be a convenient way is not
sufficient to entitle its retention if it ceases to be indispensable as
a means of access to the land.
§3. By prescription.—A private way by prescription is created by
the uninterrupted use and enjoyment for twenty years of a passage
over another person's land under a claim of right, with the knowl-
edge and acquiescence of the owner. The enjoyment of a way
for more than twenty years by license or permission of the owner
confers no right by prescription. The user must be confined to one
certain tract in order to establish such a right of way.
§4. By grant.— A private road is created by grant where the
owner of a piece of land grants to another the right of passing over
his land in a particular direction. The grantor may limit the right
as he pleases and a right of Way for one purpose does not neces-
sarily include a right of way for another purpose. In such cases
the grantor must afford reasonable facilities for the enjoyment of
the way by the grantee. (Bakeman v. Talbot, 31 N. Y., 366.)
A grant of a right of way is made by deed. The grantee must
keep the private road in repair. (Bakeman v. Talbot, 31 N. Y.,
366.) He can not deviate from the way and go upon another part
176 HIGHwa Y MANUAL OF NEW York.
t
of the grantor's land when the way becomes impassable, whether
the obstructions are accidental or the act of the OWner of the
soil. (Williams v. Safford, 7 Barb., 309; Bakeman v. Talbot, 31
N. Y., 366.)
A right of way acquired by deed can not be lost by non-user.
It may, of course, be lost by an adverse holding for twenty years.
(Smyles v. Hastings, 22 N. Y., 224.)
STATUTORY PROCEEDING.
§ 5. Application to highway commissioners.-A fourth
mode of creating a private road, is by statute. To create
a road in this manner, the statutory requirements must
be strictly followed. An application should be made in writing
to the commissioners of highways of the town in which such
road is to be located, and the application should specify the width
and location of the road, its courses and distances, and the
names of the owners and occupants of the land through which
it is proposed to be laid out.
The application to lay out a private road may be in the follow-
ing form: &
To the Commissioners of Highways of the Town of... . . . . . . . . . . . . . . . . . . in the .
County Of... . . . . . . . . . . . . .:
The undersigned, who is liable to be assessed for highway labor in your town,
hereby makes application to you to lay out a private road for his use and benefit,
beginning (insert description, giving its width and location, courses and
distance) and said proposed road will run through the land of TW, occupied
by R. S.
Dated this . . . day of........ . .18...
L. M.
Such an application is sufficient if it states the width, location,
courses and distances of the road and the other matters required,
in general terms, without more precision than is necessary to
enable the owners of land to know what part of their property
is intended to be taken, and to enable the jury to determine
intelligently upon the necessity of the road, and assess the dam-
ages. (People v. Taylor, 34 Barb., 481.)
§ 6. Jury to determine necessity, and assess damages.—After
the application is made,the commissioner or commissioners to whom
HIGHWAY MANUAL OF NEw York. 177
it is made, shall designate a day and a place in the town, at which
time and place a jury will be selected, to determine upon the
necessity of such road, and to assess the damages caused by
reason of the opening of such road. The commissioners should
select as early a day as the convenience of the parties interested
will allow.
§ 7. Application and notice delivered to applicant—The commis-
sioners shall then prepare and deliver to the applicant, a copy of
the application, together with a notice of the time and place
appointed for the selection of the jury. Such notices shall be
addressed to the owners and occupants of the land.
The following form may be used for the notice:
To T' W, Owner, and R S, Occupant:
L M, of the town of . . . . . . . . . . . . . . . . , in the county of . . . . . . . . . . . . . . , having
made written application to us, the undersigned, as commissioners of highways
of said town, to lay out a private road for his use and benefit in said town, a
copy of which is hereto attached, you are hereby notified that a jury will be
Selected at the house of... . . . . . . . . . , in said town, on the....day of... . . . . . . . 5
18. . . ., at . . . . o'clock in the . . . . . . noon, for the purpose of determining upon
the necessity of such road, and assessing the damages therefor.
Dated this....day of . . . . . . . . . . . . . . , 18. . . .
A B,
C D,
E F,
Commissioners of Highways.
§ 8. Service of application and notice.—After receiving a copy of
the application and notice from the commissioners, the person
who made the application, shall, on the same day, or the next day
thereafter, excluding Sunday and holidays, serve or cause to be
served, a copy of such application and notice upon the owners
and occupants of the lands to be taken. Such copies shall be
served by delivering one to each owner or occupant who resides
in the same town, or, if he be absent, by leaving the same at his
residence. Where the owner resides out of the town, service may be
made by depositing a copy in the post-office, properly inclosed
in an envelope, addressed to them, respectively, at their post-office
address, and paying the postage thereon. If the owners are
infants, service may be made upon their parent or guardian.
(H. L., § 109, p. 37.)
23
178 HIGHWAY MANUAL OF NEW YORK.
Af
Any person who is entitled to, but is not served with notice,
waives the Omission by appearing before the jury and contesting
the application. (M. & H. R. R. Co. v. Artcher, 6 Paige, 83.)
The following form for the affidavit of service may be used:
COUNTY OF. . . . . . . . . . . o e s e 3 }ss.
TOWN OF . . . . . . . . . . . . . . . .
L M, being duly sworn, says that he served the application and notice hereto
attached on T W and R S, on the. . . . day of . . . . . . . . . . . . , 18.., by delivering to
and leaving with each of them, copies of the same (or if served by leaving
copies at the residence, so state). .”
L M.
Subscribed and sworn to before me, }
this. . . . day of . . . . . . . . . . , 18...,
G. H.,
Justice of the Peace.
§ 9. Selection of jurors.-At the time and place designated in
the notice served upon the owners and occupants and after due
proof of the service of the notice has been given, one or more of the
highway commissioners shall present a list of the names of eighteen
freeholders residing in the town, who are not related either to the
applicant, owner or occupant, and who are not interested in the
lands to be used for the private road. (H. L., $110, p. 37.) After such
list is presented, the owners or occupants of the land may strike
from the list not more than six names, and the person who makes
the application may strike off a like number. A less number than
six may be stricken off by either or both parties. The first six
names remaining on the list shall constitute the jury.
§ 10. Summoning jury and place of meeting.—The commissioner
or commissioners of highways present shall then appoint some con-
venient time and place for the jury to meet, and shall summon
them to meet at such time and place. (H. L., § 112, p. 37.)
The following form may be used for the Summons:
COUNTY OF. . . . . . . . . . . . . . . . }ss.
TOWN OF. . . . . . . . . . . . . . . . .
To (insert the names of the sia, jurors selected):
You are hereby summoned and required to appear at the . . . . . . . . . . , in said
town of. . . . . . . . . , on the . . . . . day of . . . . . . . . . . , 18.., at.... o'clock in the....
noon, to form a jury of freeholders to determine as to the necessity of laying
HIGHw AY MANUAL or NEw York. 179
out a private road through the lands of TW, on the application of LM, and
to assess the amount of damages sustained by reason of such opening, if it is
determined to open the same.
Dated this. ...day of.......... , 18..
A B,
C D,
E F,
Commissioners of Highways.
§ 11. Selection of additional jurors.-At least one highway com-
missioner and all the persons named and summoned on such jury
shall meet at the time and place appointed. If any of the six jurors
summoned shall not appear the commissioner or commissioners pres-
ent shall summon as many resident freeholders of the town to imme-
diately appear and serve as jurors as will be sufficient to make the
number present six. The parties interested have the same rights
in regard to striking off names from such list as they had in regard
to the original list, and no person shall be summoned who is related
to either the applicant, owner or occupant Or Who is interested
in such lands. When six qualified persons shall have appeared
they shall constitute the jury. Before entering upon their duties
the jurors shall take the following oath:
You do solemnly swear, in the presence of the ever-living God (or affirm)
that you will well and truly determine as to the necessity of a private road
across the lands of T W., as has been applied for by LM, and that you will well
and truly assess the damages occasioned by the opening of Such road.
§ 12. Proceedings of jury.—After taking the oath, the jury shall
view the premises and hear the evidence of the parties and such
witnesses as they may produce.
The following oath may be administered to witnesses appearing
before such jury:
You do solemnly swear (or affirm) that the evidence you shall give, touching
the necessity of laying out the private road as applied for by L. M., and the `
damages to be sustained thereby, shall be the truth, the whole truth, and
nothing but the truth, so help you God.
Each juror shall receive for his services one dollar and fifty cents
to be paid by the applicant and the highway commissioner shall
be entitled to two dollars a day for the time necessarily employed
by him which shall also be paid by the applicant. (EI. L.,
§ 118, p. 38.)
180 HIGHWAY MANUAL OF NEW YORK,
If the jury shall determine that the proposed road is necessary,
they shall assess the damages to the person or persons through
whose lands such private road is to pass, and deliver their verdict
in Writing to the highway commissioners.
§ 13. Value of highway discontinued and verdict of jury.—If the
necessity of such private road has been occasioned by the alte-
ration or discontinuance of a public highway running through
the lands belonging to a person through whose lands the private
road is proposed to be opened, the jury shall take into considera-
tion the value of the highway so discontinued, and the benefit
resulting to the person by reason of such discontinuance, and shall
deduct the same from the damages assessed for the opening and
laying out of such private road. (H. L., § 115, p. 38.)
It is only where the necessity of such private road has been
occasioned by the alteration or discontinuance of a public highway
running through lands belonging to the same person, that the
deduction is to be made.
The following form may be used for their verdict:
COUNTY OF . . . . . . . . . . . . § }ss º
TOWN OF . . . . . . . . . . . . . . . .
We, the undersigned, being six disinterested freeholders of the said town of
tº gº tº e g º º having met on the....day Of... . . . . . . . , 18. ., at the house of , , , , ...,
in said town, and having been duly sworn, well and truly to determine as to
the necessity of the private road described in the application of L M, a copy of
which is hereto attached, and having viewed the premises through which it is
proposed to be laid out, and having heard the parties and evidence produced,
do hereby certify that in our opinion it is necessary and proper to lay out a
private road for the use and benefit of L M, pursuant to his said application,
and we assess the damages of T W at $. . . . . .
Dated this....day of... . . . . . , 18. . .
(The six jurors sign here.)
§ 14. Papers to be recorded in the town clerk's office.—The
commissioners shall annex to such verdict the application, and
their certificate, that the road is laid out, and the same shall be
filed and recorded in the town clerk’s office. (H. L., § 116, p. 38.)
The certificate of the highway commissioners may be in the
following form:
WHEREAs, L M did present to us as commissioners of highways of the town
of . . . . . . . . . . . , in the county of . . . . . . . . . . . . , a written application to lay out
a private road in said town for his use and benefit, hereinafter described; and
HIGHwAY MANUAL OF NEw YorF. 181
six disinterested freeholders having convened, after due notice to the owners
and occupants of the lands through which said road is proposed to be laid, and
after viewing said lands and hearing the parties and witnesses produced, certi-
fied that said road is necessary and proper, and assessed the damages to be
Caused thereby, which certificate was dated the . . . . day of . . . . . . . . . . . . , 18..,
and duly filed with said application, in the office of the town clerk of said town;
and no motion has been made to the county court to confirm, vacate or modify
(or as the case may be).
Now, therefore, we, the undersigned, commissioners of highways of Said
town, pursuant to section 116 of the highway law, do hereby lay out said
private road as so applied for and certified to, whereof a survey has been made
as follows: (here insert survey bill) and the line of survey is to be the center
Of the road, which is to be .... rods in width.
Dated this . . . . day of . . . . . . . . . . . . , 18 . . .
A B,
C D,
E F,
Commissioners of Highways.
§ 15. Damages to be paid before opening road.— The damages
assessed by the jury shall be paid by the party for whose benefit
the road is laid out, before the road is opened or used; but if the
jury shall certify that the necessity of such private road was occa-
sioned by the alteration or discontinuance of a public bighway,
such damages shall be paid by the town, and refunded to the
applicant. (H. L., § 117, p. 38.)
§ 16. Motion to confirm, vacate or modify.—Within thirty days
after the decision of the jury shall have been filed in the town clerk’s
office, the owner or occupant may apply to the county court of the
county wherein such private road is situated, for an order confirm-
ing, vacating or modifying their decision; and such court may con-
firm, vacate or modify such decision as it shall deem just and legal.
If the decision is vacated, the court may order another hearing
of the matter before another jury, and remit the proceeding to
the commissioners of highways of the same town for that purpose.
If no such motion is made, the decision of the jury shall be
deemed final. The motion shall be brought on, upon the ser-
vice of papers on the adverse party in the proceedings, according
to the usual practice of the court in actions and special pro-
ceedings pending therein, and the decision of the county court
shall be final except that a new hearing may be had as herein
182 HIGHWAY MANUAL OF NEW YORK.
provided. If the final decision shall be adverse to the applicant,
no other application for the same road shall be made within two
years.
The same proceedings are taken on this motion as are taken in
the case of a proceeding to lay out a public highway, and refer.
ence may be had to the forms given on pages 160-102 for sugges-
tions as to the forms to be used on this motion.
$17. Costs of new hearing.- If upon a new hearing, the daniages
assessed are increased, the applicant shall pay the costs and
expenses thereof, otherwise the owner shall pay the same.
$18. Purposes for which private road may be used.—Every private
road when so laid out shall be for the use of the party on whose
application it is laid out and for his heirs and assigns. Such
private road shall not, however, be converted to any other use
or purpose than that of a road.
The occupant or owner of the land through which such road
shall be laid out shall not be permitted to use it as a road unless
he shall have informed the jury who assessed the damages for
laying out such road of his intention so to do before such damages
were assessed. (H. L., § 121, p. 39.)
III. ABANDONMENT OF HIGH ways.
Section 1. Modes of abandonment.
2. Failure to open and work.
3. Disuse.
* 4. Statutory proceeding.
§ 1. Modes of abandoment.—A highway may be abandoned in
either of the following ways:
1. By failure to open and work within six years from the time
it is laid out or dedicated to public use.
2. By disuse and not having been traveled upon for six years.
3. By the statutory proceeding to discontinue a highway.
§2. Failure to open and work.- The period during which any
action or proceeding is pending in regard to any highway, forms no
part of the six years during which a highway must be opened and
Worked to prevent its abandonment.
EIIGHWAY MANUAL OF NEw Yorf. 183
The requirement to open and work a highway implies that it
must be made passable as a highway for public travel. It need
not be a first-class road, it need not be finished, but it must be
sufficient to enable the public to pass over it. (Beckwith v.
Whalen, 70 N. Y., 430.)
§ 3. Disuse. —Every highway not traveled or used as a highway for
six years ceases to be a highway. This applies as well to highways
created by prescription or user for twenty years as to highways
laid out by the highway commissioners or created by dedication.
(Amsbry v. Hinds, 48 N. Y., 57.)
The highway commissioners are required to file and cause to be
recorded in the town clerk's office of the town, a written descrip-
tion, signed by them, of each highway so abandoned, and such
highway shall thereupon be discontinued. (H. L., § 99, p. 35.)
The certificate describing the highway abandoned may be in
the following form:
We, the undersigned, commissioners of highways of the town of... . . . . . . . . . 2
in the county Of... . . . . . . . . . , hereby certify that the highway (here describe it),
has been abandoned by the public, and is no longer used as a public highway;
and pursuant to section 99 of the highway law, the same is discontinued.
Dated this....day of................ , 18. . . .
A B,
C D,
E F,
Commissioners of Highways.
If a highway is rendered impassable and fenced off by a tres-
passer and the traveling public acquiesce for a period of six years,
so that in all that time no one can or does make use of the high-
way, it ceases to be a highway. (Horey v. Village of Haverstraw,
124 N. Y., 273.) It does not follow that because a portion of that
which was originally laid out as a continuous laighway remains
such that all of it does. If a part of it cease to be traveled and
used for a period of six years, the public in the meantime using
some other route, such part is no longer a highway. A highway
opened and worked for a part of the distance only, as described
in the survey, but not on a particular portion thereof until after
the lapse of more than six years, ceases, as to such part, to be a
highway for any purpose. (Horey v. Village of Haverstraw, 124
N. Y., 273.) *
184 HIGHway MANUAL OF NEw YorF.
§4. Statutory proceeding.—The statutory proceeding to discon-
tinue a highway is the same as that to lay out or alter a luighway.
Application should first be made to the highway commissioners
of the town and then within thirty days thereafter a further appli-
cation should be made to the county court to appoint three com-
missioners to determine upon the uselessness of such highway
and to assess damages for its discontinuance. A motion to Con-
firm, vacate or modify the decision of such commissioners may be
made in the same manner as in the other proceeding.
Reference may be had to the forms contained on pages 152-162,
which, with slight changes, will serve for forms used in this pro-
ceeding.
A town meeting has no power to discontinue a highway once
established. That can be done only by the intervention of the
authoritics and according to the procedure pointed out in the
highway law, (Hughes v. Bingham, 135 N. Y., 347)
IV. COUNTY HIGHWAYs.
Section 1. Application to lay out, alter or discontinue.
2. Service of notice.
3. Order to be made by board of supervisors.
§ 1. Application to lay out, alter or discontinue.— County high-
ways may be laid out, opened, altered or discontinued by the board
of supervisors when application is made to such board'by twenty-five
resident taxpayers and the board is satisfied that it would be for
the interest of the county to lay out, open, alter or discontinue
such highway. The expenses incurred shall be a county charge.
(County L., § 61, p. 58.) The application may be in the following
form:
To the Board of Supervisors of the County of. . . . . . . . . . . . .gº
We, the undersigned, being twenty-five resident taxpayers of the county of
tº g º e º 'º e º º sº , hereby make application, in pursuance of section 61 of the county
law, for the laying out of a county highway of the width of . . . . . . . . , described
as follows:
(Insert a definite description of the proposed highway.)
Dated this....day of... . . . . . . . , 18...
A B,
C D, &c.
HIGHwAY MANUAL OF NEW YORK. 185
§2. Service of notice.—The applicants shall cause the following
notice to be served personally or by mail, on at least one commis-
sioner of highways in each town in the county:
To the Highway Commissioners of the Several Towns in the County of.......:
Notice is hereby given that on the....day of . . . . . . . . . . . . . . . , 18. . , the fore-
going application will be presented to the board of Supervisors of the county
A B,
C D, &c.
The notice shall specify the object of the application and desig-
nate the highway to be affected. If application is made to lay out
a highway, the route or location of such highway should be fully
described. The notice shall be served at least twelve days before
the application is presented to the board of supervisors. The fol-
lowing affidavit of service should be made:
STATE OF NEW YORK, | SS.
COUNTY OF... . . . . . . . . g
C C, being duly sworn says that he is a resident of. . . . . . . . . . . . . . , N. Y., and
that he served copies of the petition and notice annexed hereto, personally, on
each of the following commissioners of highways at the times and places oppo-
site their names, respectively :
B C at . . . . . . . . . . . . . . , N. Y., May 9, 1892, at... .o'clock in the . . . . . . Il OOIl.
CD at. . . . . . . . . . . . . . , N. Y., May 10, 1892, at.... .o’clock in the... . . . . . IlOOIl,
C C
Subscribed and sworn to before me, }
this....day of... . . . . . . . , 18. . . .
R C,
Notary Publve.
§ 3. Order to be made by board of supervisors.-The board of
supervisors shall not act on the application until proof of service
of the notice has been made. Before the board grants the applica-
tion it must be satisfied that the laying out, opening or altering
of such highway, as the case may be, is for the best interest of
the county. (County L., § 61, p. 258.)
The order of the board may be in the following form:
At a meeting of the board of Supervisors of the county of . . . . . . . . . . . . . . . . . . . 5
held at . . . . . . . . . . . . . . . . On the . . . . day of . . . . . . . . . . . 18. . .
WHEREAS, application has been made for the laying out (altering or discon-
tinuing) of a highway in Said county, and whereas satisfactory proof has been
24
186 HIGHWAY MANUAL OF NEW YORK.
made to us of the Service of a copy of such application, together with a notice
of intention to make the same, upon a commissioner of highways of each town
in said county,
Resolved, That a highway of the width of . . . . . . . . be laid out in accordance
with Such application, the center of which is to commence at
run thence (insert survey).
R. S., Chairman.
C D, Clerk,
Adopted.
Ayes . . . .
Noes ...
V. MISCELLANEOUs PROVISIONs.
Sec. 1. Board of supervisors may authorize towns to borrow
money for highway purposes.
2. The raising and expenditure of such moneys.
. Survey and record of highways.
. Highways in counties of more than 300,000 acres of
unimproved land.
. Alterations of State roads.
. When officers of different towns disagree about highway.
. Certificate of disagreement.
Order appointing commissioners.
. Proceedings of commissioners.
10. Order confirming, modifying or vacating report of com-
missioners.
11. Papers to be filed.
12. Difference about improvements.
13. Highway in two or more towns.
14. Laying out highway upon town lines.
15. Final determination, how carried out.
º
i
§1. Board of supervisors may authorize towns to borrow money
for highway purposes.—The board of supervisors may, upon the
application of any town or towns liable to taxation for construct-
ing, building or repairing any highway or bridge therein, or upon
its borders, pursuant to a vote of a majority of the elector's
thereof, at an annual town meeting, or special town meeting
called for that purpose; or upon the written request of the Com-
HIGHWAY MANUAL OF NEW YORK. 187
missioners of highways and town board of such town or towns,
authorize such town or towns to construct, build or repair such
highway or bridge, and to borrow such sums of money for and on
the credit of the town, as may be necessary for that purpose, and
to lay out, widen, grade or macadamize such 'Lighway, or to pur-
chase for public use, any plank-road, turnpike, toll-road or goll-
bridge in such town or towns, and may authorize the company own-
ing the same to sell the same, or any part thereof, or the franchises
thereof, or to pay any debt incurred in good faith by or in behalf
of such town or towns for such purpose. If such highway or
bridge shall be situated in two or more towns in the same county,
the board shall apportion the expenses among such towns in
such proportion as shall be just. (Co. L., § 69, p. 61.)
The town board is not required to borrow money. The statute
permits the board to determine what amount, if any, shall be
borrowed, and if the board does not determine to borrow any, this
will be deemed a refusal to borrow, which is within their dis-
cretion.
The public interests may require the improvement of a highway
in a single town, or one passing through the several towns, but
involving an expenditure which the particular town or towns
would refuse or be indisposed to incur.
All the people of the county are interested in the maintenance
and improvement of the great thoroughfares of travel within
the county. The Legislature intended to permit the board of
supervisors, on its own motion, under the lestrictions specified,
to provide for these public interests, and to apportion the expenses
upon one or more towns as may be just and this although the
expenditure may be wholly within one town, but on a highway
which is common to several towns.
§ 2. The raising and expenditure of such moneys.—The board
shall, from time to time, impose upon the taxable property of such
towns, sufficient tax to pay such obligations as they shall hecome
due. The supervisor and town clerk shall keep a record, showing
the date and amount of the obligations issued, the time ald place
of their payment, and the rate of interest thereon. The obliga-
188 HIGHWAY MANUAL OF NEW YORK.
tions shall be delivered to the supervisor of the town, who shall
dispose of the same for not less than par, and pay the proceeds
thereof, to the commissioners of highways of the town, or to such
officer as shall be designated by the board of supervisors, to be
used by them for the purposes for which the same were appropri.
ated; but not more than five hundred dollars of such proceeds
shall be expended upon any highway or bridge, except in pur-
suance of a contract made by a contractor with the commissioners
of the highways of the town, or other officer designated by the
board of supervisors, and approved by the town board, no member
of which shall be interested therein. If such highway or bridge
shall be wholly or partly within the limits of an incorporated
Village, the consent of a majority of the trustees of such village
shall be necessary for the action of the board of supervisors, as
herein provided. (County L., § 70, p. 62.)
§ 3. Survey and record of highways.--The board may authorize
and direct the commissioners of highways of any town to cause a
survey to be made, at the expense of the town, of any or all of
the highways therein, and to make or complete a systematic
record thereof, or to revise, collate and rearrange existing records
of highways, and correct and verify the same by new surveys
and to establish the location of highways by suitable monuments.
Such records so made, or revised, corrected and verified, shall be
deposited with the town clerk of the town, and shall thereafter be
the lawful records of the highways which they describe; but shall
not affect rights pending in any judicial proceeding commenced
before the deposit of such revised records with the town clerk.
(County L., § 72, p. 63.)
§4. Highways in counties of more than three hundred thousand
acres of unimproved land.—The board may establish separate
highway districts in counties containing more than three hundred
thousand acres of unimproved, unoccupied forest lands, for the
purpose of constructing highways through such lands; such high-
way districts to be established upon the application of the owners
of more than one-half of the non-resident lands therein. Any
such highway district shall consist of contiguous tracts or parcels
HIGHw AY MANUAL OF NEW YORK. 189
of land, and may include parts of one or more towns; and they
may be changed, altered or abolished at any time by the board.
Such board may appoint one or more commissioners to lay out
and construct such highways in any such district, and prescribe
the powers and duties and direct the manner in which highway
taxes shall be assessed, levied and collected upon the lands within
the district, and the manner of expenditure thereof. They may
also authorize such commissioners to borrow money on Such terms
as they may deem just, but not exceeding the amount of ten years'
highway taxes upon such lands; and may, for the purpose of
repaying such loan, set apart and appropriate the highway taxes
upon such lands, for a period not exceeding ten years from the
time of making such loan. (County L., § 74, p. 64.)
§ 5. Alterations of state roads.-The board may authorize the
commissioners of highways of any town in their county to alter or
discontinue any road or highway therein, which shall have been
laid out by the state under the same conditions that would govern
their actions in relation to highways that have been laid out by
local authorities. (County L., § 77, p. 65.)
§ 6. When officers of different towns disagree about highway.—
When the commissioners of highways of any town, or officers of
any village or city having the powers of commissioners of high-
ways, shall differ with the commissioner of highways of any other
town, or with the officers of such village or city having the powers
of commissioners of highways in the same county, relating to the
laying out of a new highway or altering an old highway extend
ing into both towns, or a town and a village or city; or when
commissioners of highways of a town in one county shall differ
with the commissioners of highways of a town, or the officers of
a village or city having the powers of commissioners of highways,
in another county, relating to the laying out of a new highway,
or the alteration of an old highway, which shall extend into both
counties, the commissioners of highways of both towns, or the
officers of the village or city having such powers shall meet on
five days’ written notice, specifying the time and place, within
some one of such towns, villages or cities, given by either of such
190 HIGHWAY MANUAL OF NEw York.
commissioners or officers having powers of commissioners of high-
ways, to make their determination in writing upon the subject of
their differences. (H. L., § 94, p. 32.)
The notice may be in the following form:
To N M Cºnd W. W:
Notice is hereby given that the undersigned who are commissioners of high-
ways for the town of . . . . . . . . . . will meet at. . . . . . . . . . in Said town, on the . . . .
day of... . . . . . . . . . . . , 18. ., at . . . . o'clock in the . . . . . . . . noon, for the purpose of
determining upon the necessity of and arriving at a common understanding in
relation to the laying out of a new highway (or the altering of a highway)
extending from the town (or city or village) of........ ...to the town (or city or
Village) of . . . . . . . . . ., and described as follows: (Insert description.)
Dated this ...day Of...... * @ e º 'º º , 18. . .
§7. Certificate of disagreement.—If they can not agree, they or
either of them may certify the fact of their disagreement to the
county court of the county, if the proposed highway is all in one
county, or if in different counties, or if the county judge is disquali-
fied or unable to act, to the supreme court.
The certificate may be in the following form:
COUNTY COURT-. . . . . . . . . e tº e º ºs e eCOUNTY,
IN THE MATTER OF THE APPLICATION OF L M TO LAY OUT (OR ALTER) A HIGH-
WAY EXTENDING FROM THE TOWN (OR CITY OR VILLAGE) OF. . . . . . . . . . . .
TO THE TOWN (OR CITY OR VILLAGE) OF. . . . . . . . . . . .
To the County Court of... . . . . . . . . . County:
The undersigned, commissioners of highways of the town of..........in the
County of . . . . . . . . . . . , hereby certify that on the....day of . . . . . . . . . . . . , 18. ,
L M, who is liable to be assessed for highway labor in the town of . . . . . . . . . . . 3.
made a written application to us as such commissioners to lay out (or alter) a
highway extending from the town (or city or village) of . . . . . . . . , in the county
of. . . . . . , to the town (or city or village) of . . . . . . . , in the County of. . . . . . . .
That the highway commissioners of the said towns (or the said town and the
city or village authorities of the said city or village) cannot agree as to the
necessity of such highway or the terms upon which the same shall be laid out
S S,
G. G.,
J J,
Commassioners.
§8. Order appointing commissioners.—Such court shall thereupon
appoint three commissioners freeholders of the county, not resi-
dents of the same town, village of city where the highway is
located; or if between two counties, then freeholders of another
County.
HIGHwAY MANUAL of NEW YORK. 191
The order appointing such commissioners and the notice of
appointment may be in the following form:
At a . . . . . . . term of the county court of the County of . . . . . . . . . . . . , held at
* * * * * * * * in the . . . . . . . in and for said county.
Present – Hon. E E, county judge.
IN THE MATTER OF THE APPLICATION OF L M TO LAY OUT (OR ALTER) A HIGH-
WAY EXTENDING FROM THE Town (OR CITY OR VILLAGE) OF . . . . . . . . . . . . , TO
THE TOWN (OR CITY OR VILLAGE) OF . . . . . . . . . . . .
On reading and filing the certificate of S S, GG, and JJ, highway commis-
Sioners of the town of . . . . . . . . . . . . , and D D, and FF, (title of officials) of the
city or village) of . . . . . . . . . . . . , in the county of . . . . . . . . . . . . , dated the . . . .
day of . . . . . . . . , 18 ..., stating (here state substance of facts in the certificate)
and upon reading the (state what papers) and after hearing MD, of counsel for
the applicant, and O L P, of counsel for R C C, opposed, it is hereby ordered
that A B, A, C, and D D, of the town of . . . . . . . . . . . . , county of . . . . . . . . . . . 3.
be, and they are hereby appointed commissioners to determine upon the neces-
sity of laying out (or altering) such highway (or adjust the terms upon which
such highway shall be laid out (or altered).
To S S, G. G. & J J:
Take notice that you and each of you have been duly appointed commission-
ers by an order of the county court, a copy of which is hereto annexed, and
you are hereby required to fix a time and place at which you will all meet to
hear the commissioners of highways of both towns or the highway commis-
sioners of the town of . . . . . . . . . . . . and the (name corresponding officials) of
the city (or village) of . . . . . . . . . . . . and all other persons interested in the high-
way question.
Dated this . . . . . . day of . . . . . . . . . . , 18..
§ 9. Proceedings of commissioners.-The commissioners so
appointed shall take the constitutional oath of office (for
oath see p. 155), and upon due notice to all persons inter-
ested, view the proposed highway or proposed alteration of
highway, administer all necessary oaths, and take such evidence
as they shall deem proper, and shall decide (subject to the
approval of the court, as hereinafter provided) all questions that
shall arise on the hearing, as to the laying out or altering of
such highway, its location, width, grade and character of road-
bed, or any point that may arise relating thereto; and
if they decide to open, or alter such highway, they shall
ascertain and appraise the damages, if any, to the individual
owners and occupants of the land through which such new or
altered highway is proposed to pass, and shall report such evidence
and decision to such court, with their assessment of damages, if
any, with all convenient speed.
192 HIGHWAY MANUAL OF NEW YORK.
The decision of such commissioners in favor of the application
shall be in the following form:
The undersigned, by an order of the county court of . . . . . . . . . . . . County,
dated the . . . . . . day of . . . . . . . . . . . . , 18. ., having been appointed commis-
Sioners to certify as to the necessity of laying out (or altering) a highway
extending between the town (city or village) of . . . . . . . . . . . . and the town
(city or village) of . . . . . . . . . . . . , in the county of . . . . . . . . . . . . , and described as
follows (insert description); now, therefore, we, the said commissioners,
having given due notice of the time and place at which we would meet, and all
having met at . . . . . . . . , in the town of . . . . . . . . . , On the . . . . . day of. . . . . . . . . .
18. ..., pursuant to such notice, and having taken the constitutional oath of
office, and on proof of the Service of the notice on the highway commissioners
of the towns of . . . . . . . . . . . . . . . . . . . . . . (or of the town of . . . . . . . . . . . . and city
or village of . . . . . . . . . . . . ) and having viewed the proposed highway (or pro-
posed alteration of a highway) and the lands through which it is proposed to
be laid out (or altered), and having heard all the allegations of the commis-
sioners of highways and the parties interested therein, and the evidence of all
the witnesses produced, do thereupon certify that in our opinion it is neces-
sary and proper that the highway be laid out (or altered) and we have assessed
the damages required to be assessed by reason of laying out (or altering) such
highway as follows:
The damages of M N at $. . . . . . ; the damages of MO at $. . . . . . , etc.
Dated this . . . . . . day of . . . . . . . . . . . . , 18...
S S,
G. G.,
J J,
Commissioners.
§ 10. Order confirming, modifying or vacating report of commis.
sioners.—On the coming in of such report, the court may, by Order,
confirm, modify or set aside the report in whole or in part, and may
order a new appraisal by the same or other commissioners, and
shall decide all questions that may arise before it.
Reference may be had to the forms on pages 160-162 for the
forms to be used in this proceeding.
§ 11. Papers to be filed—All orders and decisions in the matter
shall be filed in the county clerk's office of each county where the
highway is located, and shall be duly recorded therein.
§ 12. Difference aboutimprovements.--When the commissioners
of highways of a town, or the officers of a village or city having the
powers of commissioners of highways therein, shall desire to make
a new or altered highway extending beyond the bounds of such
HIGHWAY MANUAL OF NEW YORK. 193
town, village or city, a better highway than is usually made for a
common highway, with a special grade or road-bed, drainage or
improved plan, and are willing to bear the whole or a part of the
expense thereof beyond such bounds, but can not agree in regard
to the same, upon written application of either of the commission-
ers or officers, and notice to all parties interested, such court shall
make an equitable adjustment of the matters, and may direct,
that in consideration of the payment of such portion of the addi-
tional expense by the town, village or city that desires the
improved and better highway, as shall be equitable, its officers,
contractors, servants and agents may go into such town, Village or
city, and make the grade and road-bed, and do whatever may be
necessary and proper for the completion of such better highway,
advancing the money to do it; the amount of damages to each
owner or occupant, shall be ascertained and determined by com-
missioners, who shall be appointed, and whose proceedings shall
be conducted in the manner provided by the last preceding sec-
tion; and upon the coming in of their report of damages, and of
the expenses paid, such court shall, on notice to all parties inter-
ested, direct that the amount of damages assessed to each owner
or occupant, if any, and all such expenses be paid by each, any or
all of such towns, villages or cities as shall be just and equitable,
and the damages and expenses assessed and allowed, as in this
and the last preceding sections, shall be paid and collected as
if fixed by the commissioners of highways of the towns, or the
officers of such villages or cities having the powers of such commis-
sioners. Every commissioner appointed as herein provided, shall
be paid six dollars for each day actually and necessarily employed
in such service and necessary expenses. (H. L., § 95, p. 33.)
§ 13. Highway in two or more towns.—When application is
made to lay out, alter or discontinue a highway located in two
or more towns, all notices or proceedings required to be served
upon the commissioners of highways, shall be served upon the
commissioners of highways of each town; and the commissioners
appointed by the court, shall determine the amount of damages
to be paid by each town, and when the towns are in different
Counties, the application for the appointment of commissioners
25
12% HIGHWAY MANUAL OF NEw York.
\
shall be made to a special term of the supreme court held in the
district where the highway or some part of it is located; and the
same proceedings shall thereafter be had in the supreme court
dfisuch district as are authorized by this chapter to be had in the
county court. (H. L., § 96, p. 34.)
{{ {
gš 14. Laying out highway upon town line.—An application to
lay out a highway upon the line between two or more towns,
shall be made to the commissioners of highways of each town,
who shall act together in the matter, and upon laying out any
such highway, they shall divide it into two or more highway dis-
tricts, in such manner that the labor and expense of opening,
working and keeping the same in repair through each of such
districts, may be equal, as near as may be, and to allot an equal
number of the districts to each of the towns; each district shall
be considered as wholly belonging to the town to which it shall
be allotted, for the purpose of opening and improving the highway,
and for keeping it in repair; and the commissioners of bighways
shall cause the highway, and the partition and allotment thereof
to be recorded in the office of the town clerk, in each of their
respective towns. (H. L., § 97, p. 34.)
The following forms may be used for the application and
allotment:
To the Commissioners of each of the Towns A and B in the County
of . . . . . . . . . . . . . . . . . :
We, the undersigned, L. M., an inhabitant of the town of A in said county,
liable to be assessed for highway labor therein, and T W., an inhabitant of the
town of B, said county, and liable to be assessed for highway labor therein,
hereby apply to you to lay out a highway on the line between said towns,
beginning (here insert description of the proposed highway) and which said
highway will pass through the lands of J K and R. S.
T)ated this....day of... . . . . . . . . . 18... L W.
T. W.
The proceedings are the same as where the highway is proposed
to be laid out wholly within one town, except consents, releases,
dedications, etc., shall be given to both of the towns, and the com-
missioners of highways of both towns should unite in making
any order or certificate which they are required to make; and all
HIGHway MANUAL of NEw York. 195
papers used in the proceeding should be made in duplicate, and ome
set filed in the office of the town clerk of each town. If the pro-
posed highway is on a county line, and application is made to the
court, it should be the Supreme Court at special term. §
The following should be added to the order or certificate laying
out the highway, a form for which may be found on p. 161:
And it is ordered that the said highway be divided into (two) districts as fol
lows: That the part thereof from. . . . . . . . . . . . . to. . . . . . . . . . . . . shall be one of
said highway districts, and shall be allotted to the town of A, and the residue
of said ſighway shall be the other of Said highway districts, and shall be
allotted to the town of B.
Dated this....day of... . . . . . . . . . 18 . .
A B,
C D,
E F,
Commissioners of Highways of the Town of A.
G. H.,
I J,
K L,
Commissioners of Highways of the Town of B.
§ 15. Final determination, how carried out.— The final determi,
nation of commissioners appointed by any court, relating to the
laying out, altering or discontinuing a highway, and all orders and
other papers filed or entered in the proceedings, or certified copies
thereof from the court where such determination, order and papers
are filed and entered, shall be forthwith filed and recorded in the
town clerk's office of the town where the highway is located; and
every such decision shall be carried out by the commissioners of
highways of the town, the same as if they had made an order to
that effect. (H. L., § 98, p. 35.)
CHAPTER III.
Highway Officers.
I. Commissioners of highways.
II. Overseers of highways.
I. CoMMISSIONERS OF HIGHWAYs.
Sec. 1. Election and term of office.
2. Number, change of.
3. Qualification.
4. Oath.
5. Undertaking.
6. Resignation.
7. Vacancies.
8. Holding over.
9. Compensation.
10. Delivery of books and papers to successor.
11. Treasurer of highway commissioners.
12. Powers of one commissioner.
13. Powers of majority.
14. General powers.
15. Meetings of commissioners.
16. Commissioners may administer oaths.
17. Description and record of highways.
18. Commissioners as fence viewers.
19. Duty of commissioners as to fires in Woods.
. Indictment.
. Reports of commissioners.
:
º
§ 1. Election and term of office.—A town which has but one
commissioner of highways, elects a person to fill the office of com-
missioner, at each alternate town meeting, for a term of two years,
HIGHWAY MANUAL OF NEw York. 197
A town which has three commissioners, elects a commissioner
annually for a term of three years. (T. L., § 17, p. 53.)
§ 2. Number, change of.-If a town has one commissioner of
highways and desires to have three, the electors may so determine
by resolution at an annual town meeting, and shall elect three
Commissioners for the terms of one, two and three years, respec-
tively. If a town has three commisssioners and desires to have
but one, the electors may adopt a resolution to that effect at an
annual town meeting and thereafter a commissioner shall not be
elected until the expiration of the terms of the commissioners in
Office, but the existing commissioners shall continue in office until
the expiration of their terms. If a town is newly erected, the
electors at the first annual town meeting may determine whether
the town shall have one or three commissioners of highways. If
One is determined on, they shall elect a commissioner of highways
for a term of two years. If three is determined on, they shall elect
three commissioners for the terms of one, two and three years
respectively. (T. L., § 17, p. 53.)
§ 3. Qualification.—A resident of the town, who is twenty-one
years of age and a qualified voter, may hold the office of commis-
sioner of highways. (T. L., § 50; Pub. Off. Law, § 3.)
§ 4. Oath.-A commissioner of highways within ten days after
he is notified of his election or appointment and before entering
on the duties of his office, must take and subscribe the following
Oath:
“I do solemnly swear (or affirm) that I will support the Constitu-
tion of the United States, and the Constitution of the State of
New York, and that I will faithfully discharge the duties of the
office of commissioner of highways according to the best of my
ability.”
If he was elected to the office, he must take the following oath
in addition and as part thereof:
“And I do further solemnly swear (or affirm) that I have not
directly or indirectly paid, offered or promised to pay, contributed,
or offered or promised to contribute, any money Or Valuable thing
198 HIGHWAY MANUAL OF NEW YORK.
as a consideration or reward for the giving or withholding a vote
at the election at which I was elected to such office, and have not
made any promise to influence the giving or withholding any such
Vote.”
The oath may be taken before a justice of the Supreme court,
county judge, county clerk, surrogate, special county judge, special
surrogate, deputy county clerk, justice of the peace, notary public
or the town clerk; and, within eight days, must be filed in the
office of the town clerk. No other oath, declaration or test shall
be required.
The filing of the oath is an acceptance of the Office. (Const.,
art. 12, § 1, p. 68; Town L., § 51; Code Civ. Pro., § 842.)
A failure to take and file the oath before entering on the duties
of the office is a misdemeanor. (Penal Code, § 42.)
§ 5. Undertaking.—A commissioner of highways within ten days
after notice of his election or appointment, must give an under-
taking, with two or more sureties, approved by the supervisor of
his town, which may be in the following form:
WHEREAS, K L, of the town of . . . . . . . . . . . . . . . , in the county of
was on the . . . . day of . . . . . . . . . . . , 18.., duly elected commissioner of high-
ways; now, therefore, we, the said K L, principal and N O and R S of the
town of . . . . . . . . . . . . . . , his sureties, do hereby, pursuant to section 63 of the
town law, jointly and severally undertake that the said KL will faithfully dis-
charge his duties as such commissioner, and that he will within ten days after
the expiration of his term of office, pay over to his successor all moneys
remaining in his hands as Such commissioner, and render to such successor a
true account of all moneys received and paid out by him as such commissioner.
Dated this....day of... . . . . . . . . . , 18..
K L.
N O.
R. S.
ACKNOWLEDGMENT TO BE ADDED,
STATE OF NEW YORK,
COUNTY OF. . . . . . . . . . . | SS
Town Of... . . . . . . . . . .
On this. . . . . . day of. . . . . . . . . . . . , 18. ..., before me, the subscriber person-
ally appeared K L, NO, and R S, to me personally known to be the same per-
Sons mentioned in, and who executed the foregoing undertaking, and severally
acknowledged that they executed the same.
G. H.,
Justice of the Peace.
HIGHWAY MANUAL OF NEw York, 199
JUSTIFICATION OF SURETIES.
STATE OF NEW YORK, } SS. º.
COUNTY OF. . . . . . . . . . . e &
N O and R S, the sureties mentioned in the foregoing undertaking, being
severally duly sworn, each for himself says, that he is a resident and freeholder
(or householder) within this State, and is worth. . . . . . . . . . . . . . dollars over and
above all debts and liabilities which he owes or has incurred, and exclusive
of property exempt by law from levy and sale on execution. N O
R. S.
Subscribed and sworn to before me, }
this. ...day of...... ... . . . , 18. . .
G H,
Justice of the Peace.
APPROVAL BY SUPERVISOR TO BE INDORSED.
I hereby approve of the foregoing undertaking, and of the sufficiency of
the sureties therein named.
A B,
Supervisor of the Town of..... . . . . . . . .
The undertaking must be delivered to the supervisor, and within
ten days thereafter filed by him in the town clerk's office.
(T. L., § 63, p. 54.)
The parties executing the undertaking are jointly and severally
liable, regardless of its form in that respect, for the damages to
any person or party by reason of a breach of its terms. (T. L.,
§ 66, p. 55.)
The sureties remain liable during the term for which the conu-
missioner was chosen, but not if he is reappointed.
The failure to execute his undertaking in the form or by the
number of sureties required by law, or of a surety thereto to make
an affidavit required by law, or in the form so required, or the
omission from such an undertaking of the approval required by
law, does not affect the liability of the sureties therein.
The commissioner of highways must not receive any money or
property as such, or do any act affecting the disposition of any
money or property which he is entitled to receive or have the cus-
tody of, before he has filed such undertaking; and any person
having the custody or control of any such money or property must
not deliver the same to him until such undertaking shall have
been given. If he enters on the discharge of any of his official
200 HIGHWAY MANUAL OF NEW YORK.
duties before giving such undertaking, the sureties upon his
undertaking subsequently given for or during his official term are
liable for all his acts and defaults done or suffered and for all
moneys and property received during such term prior to the
execution of such undertaking, or if a new undertaking is given,
from the time notice to give such new undertaking is served upon
him. Such undertaking is obligatory and in force so long as the
commissioner continues to act as such and until his successor is
appointed and duly qualified, and until the conditions of the
undertaking have been fully performed. When his official under-
taking is renewed pursuant to law the sureties upon the former
undertaking are not liable for any official act done or moneys
received after the due execution, approval and filing of the new
undertaking. (Pub. Off. L., §§ 11, 12.)
In case of default the undertaking must be prosecuted in the
name of the Supervisor.
§ 6. Resignation.—A commissioner of highways may resign his
office to the town clerk, by a written instrument in substantially
the following form: (Pub. Off. L., § 21.)
To CD, Town Clerk of the Town of............ , in the County of
I hereby tender my resignation of the office of highway commissioner of
said town, for the following reasons: (State them.)
Dated this. ...day of... . . . . . . . . . . . . . , 18...
tº e º 'º e º ºs º ºs e ºs e e
T. W.
Three justices of the peace of the town may, also, for sufficient
cause shown, accept his resignation, and on accepting it, must
forthwith give notice thereof to the town clerk. (T. L., § 64,
p. 55.) The resignation and notice may be in the following
form:
Resignation.
To E F, G H and I J, Justices of the Peace of the Town of
in the County Of... . . . . . . . . . . . :
I hereby tender my resignation of the office of commissioner of highways
of said town, for the following reasons: (Here state them.) *
Dated this....day of... . . . . . . . . . . . . . , 18...
tº e g º e º e º tº º ºs º ºs e º ºs º º
T. W.
HIGHWAY MANUAL OF NEw YorF. 201
Notice of Acceptance of Resignation.
COUNTY OF. . . . . . . . . . . . . . . . . . } º
SS.
TOWN OF ..................
To CD, Town Clerk of said Town :
You are hereby notified, pursuant to section 64 of the town law, that we, the
undersigned, justices of the peace of said town, have, for good cause shown,
accepted the resignation of TW as commissioner of highways of said town.
Dated, this....day of... . . . . . . . . . . . . . , 18. . .
E F,
G. H.,
I J,
Justices of the Peace.
If the resignation is made to the town clerk, it takes effect on
delivery to him at his place of business, or when it is filed in his
office. (Pub. Off. L., § 21.)
It seems that either method of resigning may be adopted.
The justices may accept the resignation, while the town clerk
must. (Town L., § 64; Pub. Off. L., § 21.)
§ 7. Vacancies.—A vacancy occurs in the office of commissioner
of highways, on the happening of any one of the following events,
before the expiration of his term:
1. His death.
His resignation.
EHis removal from office.
His ceasing to be an inhabitant of the town.
. His conviction of a felony, or a crime involving a violation
of his oath of office.
6. The judgment of a court, declaring void his election or
appointment, or that his office is forfeited or vacant.
7. His refusal or neglect to file his official oath or undertaking
before or within fifteen days after the commencement of his
term of office, if elected, or, if appointed, within fifteen days after
notice of his appointment, or within fifteen days after the com-
mencement of such term; or to file a new undertaking within
fifteen days after notice to him, that such renewal undertaking
is required. (Pub. Off. L., § 20.)
If a vacancy occurs in the office of commissioner of highways,
the town board, or a majority of them, may, by an instrument
under their hands and seals, appoint a person to ill the vacancy,
:
26
202 HIGHWAY MANUAL OF NEw York.
|
who shall hold office until the next annual town meeting. The
appointment must be filed in the office of the town clerk, who
must immediately give notice to the person appointed. (T. L.,
§ 65, p. 54.)
The appointment and notice may be in the following form:
Appointment to Vacancy,
WHEREAs, a vacancy has occurred in the office of commissioner of highway
of said town by the resignation (or otherwise) of TW; now therefore we, the
the undersigned, town board of said town, do hereby, pursuant to section 65 of
the town law, appoint D B to fill the vacancy in the office of commissioner of
highways caused by the resignation (or otherwise) of the said TW, to serve
until the next annual town meeting.
Witness our hands and seals this . . . . . day of . . . . . . . . . . . . . . . . . . . . , 18. . . .
(Town board sign and seal here.)
Notice to Person Appointed.
COUNTY OF. . . . . . . . . . . . . .
TOWN OF . . . . . . . . . . . . . } SS
To D B, Esq. : º
You are hereby notified, pursuant to section 65 of the town law, that you
have been appointed commissioner of highways of said town of . . . . . . . . . . . . . . 2
to fill the vacancy caused by the resignation (or otherwise) of T W., and you
are required to take the oath of office, and file your undertaking within ten
days after receiving this notice, as directed by section 51 of the town law.
Dated this . . . . . . day of . . . . . . . . . . . . . . . , 18. . . . CD,
Town, Clerk.
If there is a failure to elect commissioners at the annual town
meeting, in consequence of a tie vote or otherwise, the town board
may appoint commissioners to hold office until the next annual
election. (People ex rel. Simpson v. Van Horne, 18 Wend., 515.)
§8. Holding over.—Having duly entered on the duties of his office,
a commissioner of highways shall, unless the Office is terminated or
abolished, hold over and continue to discharge the duties of his
office, after the expiration of his term, until his successor shall
be chosen and qualified. (Pub. Off. L., § 5)
HIGHWAY MANUAL OF NEW YORK. 203
§ 9. Compensation.—Commissioners of highways receive two
dollars per day for each day actually and necessarily employed in
the discharge of the duties of the office. (T. L., § 178, p. 57.)
§ 10. Delivery of books and papers to successor.—Whenever
the term of office of a commissioner of highways expires, or he
resigns, and another person is elected or appointed to the office,
the succeeding officer must immediately after he shall have
entered on the duties of his office demand of his pre-
decessor all the records, books and papers under his con-
trol belonging to such office. Every commissioner so
going out of office, whenever so required must deliver on
oath to his successor all the records, books and papers in his
possession or under his control belonging to the office held by him,
which oath may be adminstered by the officer to whom the deliv-
ery is made, and must at the same time pay over to his successor
the moneys belonging to the town remaining in his hands. If any
commissioner dies, his successor must make such demand of the
executors or administrators of such deceased officer, and such
executors or administrators must deliver on like oath, all records,
books and papers in their possession, or under their control, belong-
ing to the office, held by their testator or intestate. If any com-
missioner so going out of office, or his administrator, refuscs or
neglects, when lawfully required, to deliver such books, papers or
records, he forfeits to the town, for every such refusal or neglect,
the sum of two hundred and fifty dollars, and the officer entitled
to demand such records, books and papers may compel the delivery
thereof in the manner prescribed by the code of civil procedure.
(Town Law, § 84, p. 56; Code Civil Procedure, § 2471a.)
$11. Treasurer of highway commissioners.—When there is more
than one commissioner of highways in any town, they shall
designate one of their number to be treasurer. In case they fail
to make such appointment then the commissioner longest in office
shall be treasurer, and all money collected for highway purposes
or belonging to the highway fund of the town shall be paid to
him. (H. L., § 2, p. 4.)
204 HIGHWAY MANUAL OF NEW YORK,
Before the treasurer shall receive any money, he must give an
undertaking to be approved by the supervisor, to the effect that he
will faithfully account and pay over to any officer or person enti.
tled thereto, any money that may come into his hands as such
treasurer. (H. L., § 2, p. 4.)
The undertaking, justification and approval may be in the fol-
lowing form:
WHEREAS, the commissioners of highways of the town of . . . . . . . . . . . . . , in the
County to . . . . . . . . . . . . , have designated A B, one of their number, to be treas-
urer, pursuant to section 2 of the highway law; now, therefore, we, the said
A B, and LM, as his surety (or Sureties, as the case may be), do hereby jointly
and severally undertake to and with the said town that the said A B will faith-
fully account and pay over to any officer or person, entitled thereto, any money
that may come into his hands as such treasurer.
Dated this . . . . day of . . . . . . . . . . . . , 18 . . .
A. B.
L M.
STATE OF NEW YORK, } SS. §
COUNTY OF... . . . . . . . .
On this . . . . day of . . . . . . . . . . . . , 18 ..., before me personally appeared the
above-named A B and LM, to me personally known to be the same person
described in and who executed the foregoing undertaking, and severally
acknowledged that they executed the same.
G. H.,
Justice of the Peace.
STATE OF NEW YORK, } SS. §
L M and . . . . . . , above named, being duly and severally sworn, each for him-
self, says that he is a resident of and a householder, or freeholder, within the
State, and is worth . . . . . . . . . . . . dollars over and above all debts and liabilities
which he owes or has incurred, and exclusive of property exempt by law from
levy and sale under execution.
L. M.
Subscribed and sworn to before me, }
this . . . . day of . . . . . . . . , 18. . .
G. H.,
Justice of the Peace.
(Approval.)
I approve of the within (or foregoing) undertaking, and of the sufficiency of
surety (or sureties) therein named.
Dated this . . . . day of . . . . . . . , 18 ...
BS,
Supervisor of . . . . . . . . . . . .
Highway MANUAL of New York. 205
§12. Powers of one commissioner.—When but one commissioner
of highways is chosen he possesses all the powers and must dis-
charge all the duties of commissioners of highways. (T. L., $17,
p. 53; H. L., § 3, p. 4; Statutory Construction L., § 8.)
§ 13. Powers of majority.—Where three commissioners are
elected, two of such commissioners may exercise any power or
authority or porform any duty of the board, provided the meeting
at which such action is taken was duly called, or held on reason-
able notice to all the commissioners. So also if a commissioner
dies or becomes insane, the two remaining commissioners may
exercise the powers and perform the duties of the board. If, how-
ever, the offices of two of the commissioners become vacant, there
seems to be no authority of law for the remaining commissioner
to act for the board. (Statutory Construction L., § 19.)
§ 14. General powers.—Commissioners of highways have the
general care and superintendence of the highways and bridges
of their town, except where the jurisdiction is conferred on some
other authority as where a village or city is made a separate
road district or the highways of the town are worked as county
roads. The powers and duties of the commissioners in relation
to bridges are considered in the chapter on “bridges.” Their
powers and duties in relation to laying out, altering and dis-
continuing highways and private roads are considered in the
chapter on that subject.
Highway commissioners are required by law to keep the high-
ways of the town in repair by the money or labor system as the
one or the other has been adopted by the town. The moneys
which are raised by the town at large for highway purposes and
paid over to the commissioners are to be expended by them in the
improvement of the highways of such town. (H. L., § 4, p. 4;
L. 1878, ch. 377, § 2, p. 73.) The powers of the commissioners in
relation to repairing and improving the highways and the
acquisition of tools, implements, machines and the raising of addi-
tional funds therefore are fully discussed in the chapter on “main-
tenance.” They are also required to divide the town into high-
way districts and within One Week appoint an overseer for each
206 HIGHWAY MANUAL of NEw York.
district, but this need not be done if the highways are worked by
the money system. If the highways are worked by the labor
system, they must assess the highway labor for the districts and
by Warrant require the overseers to warn persons to work on the
highway. The powers of the commissioners in relation to the crea-
tion of highway districts, the appointment of overseers, the assess-
ment and performance of highway labor and relating generally
to the improvement of highways, are fully considered in the
chapter on “maintenance.” (H. L., § 4, p. 4.)
§ 15. Meetings of commissioners— The commissioners of high-
Ways of each town must meet within eighteen days after the
annual town meeting, at the town clerk's office, on such day as
they agree on, and thereafter at such other times and places as
they think proper.
Where there is but one highway commissioner in a town he
should attend at the same place. The purpose of this meeting
is to make the assessment for highway labor. Such commis-
sioners can adjourn to another place, or appoint a subsequent
meeting. This provision of the statute is directory and a failure
to hold such meeting within the prescribed time would not,
according to the usual interpretation of such statutes, render
the acts of a subsequent meeting void. (H. L., § 30, p. 13.)
§ 16. Commissioners may administer oaths.-A commissioner
may administer an oath in any matter or proceeding lawfully
before him, or in relation to any paper to be filed in his office.
(T. L., § 56, p. 54.)
§ 17. Description and record of highways.-The commissioners
must cause highways that have been laid out and such as have
been used for twenty years, but not recorded, to be ascertained
described and recorded in the town clerk's office. (H. L., § 4, p. 4.)
§ 18. Commissioners as fence-viewers.-The commissioners of
highways and assessors elected in every town, by virtue of their
office, are fence-viewers of their town. (T. L., § 23, p. 54.)
HIGHway MANUAL OF NEW YoFK. 207
*
$19. Duty of commissioners as to firesin woods.--Whenever the
woods in any town are on fire, it is the duty of the justices of the
peace, the supervisor and commissioners of highways of Such
town, and of each of them, to order as many of the inhabitants of
such town liable to work on the highways, and residing in the
vicinity of the fire, as they deem necessary, to repair to the place
where such fire prevails to assist in extinguishing it, or in stopping
its progress. (T. L., § 82, p. 56.)
$ 20. Indictment.—A commissioner of highways may be indicted
for a willful neglect of duty under section one hundred and fifty-
four of the penal code, which reads as follows: “Where any
duty is or shall be enjoined by law upon any public officer, or
upon any person holding a public trust or employment, every
willful omission to perform such duty where no special pro-
vision shall have been made for the punishment of such delin-
quency, is punishable as a misdemeanor.”
§ 21. Reports of commissioners.-The commissioners of highways
in each town shall make to the town board, at its first meeting
in each year, a written report, which may be in the following
form:
The undersigned, commissioners of highways of the town of.......... , in
the county of... . . . . . . . , hereby render to the town board of said town, the fol-
lowing report :
1. The highway labor assessed in said town for the year ending on... . . . . . . 3.
18.., was... days; and the highway labor performed in said town during the
said year was....days, as appears by the accounts rendered us by the several
overseers of the highways in said town.
2. The said commissioners have received during the said year the following
sums of money for fines and commutations, and from other sources:
Date. FROM WIBIOM RECEIVED, On what account. Amount.
208 HIGHwAY MANUAL OF NEW YORK.
&
8. They have paid out during the said year, for which they have receipts in
full, the following sums:
Date. TO WEIOM PAID. On what account. . Amount.
4. The improvements which have been made on the highways and bridges
in said town during said year are as follows: (Specify improvements.) And
the highways and bridges in said town are (specify the condition they are in).
Dated this....day of February, 18. . .
Vº A. B y
C D,
E F,
Commissioners of Highways.
To the second meeting of the town board they must make a
report, which may be in the following form:
The undersigned, commissioners of highways of the town of.......... , in th
county of . . . . . . . . , hereby render to the town board of said town, the follow-
ing report:
1. The following improvements are necessary to be made on the highways
and bridges in said town during the next fiscal year, viz.: (Here specify the
improvements deemed necessary.)
2. The probable expense of making such improvements beyond what the
labor to be assessed will accomplish, is by us estimated at $. . . . . .
Dated this... day of November, 18...
A B,
C D,
E F,
Commissioners of Highways.
A duplicate of which must be delivered by the commissioners
to the supervisor of the town, who must present such duplicate
statement to the board of supervisors, who must cause the amount
so estimated, not exceeding five hundred dollars in any one year,
to be assessed, levied and collected, in such town, in the same
manner as other town charges. (H. L., § 19, p. 10.)
The money raised in pursuance of such report is additional to
the assessment for highway labor, or, under the money System, in
substitution for labor, and is for the general improvement of the
highways of the town.
HIGHWAY MANUAL OF NEW YORK. 209
II. OvKRSEERs of HIGHWAYs.
Section 22. Appointment.
23. Penalty for failure to serve.
24. Vacancy.
25. Compensation.
26. General powers.
27. Indictment.
28. Penalties.
29. Collection of penalties.
30. Annual return.
§ 22. Appointment.—Within one week after each annual town
meeting, the commissioners of highways must make and file with
the town clerk, a written appointment of a resident of each dis-
trict, to be overseer of highways therein, which may be in the
following form:
The undersigned, commissioners of highways of the town of..............
in the county of... . . . . . . . . . . . . , hereby appoint overseers of the highways of
said town for the ensuing year, as follows:
District No. 1.-J. K.
District No. 2.- L. M.
District No. 3.- T W.
Dated this....day of... . . . . . . . . . , 18. . .
A B,
C D,
E F,
Commissioners of Highways.
The town clerk must notify each overseer of his appointment
within ten days after notice of such appointment is filed in his
office; and the person so appointed and notified, shall be the
overseer of highways within his district for one year, and until
his successor is appointed. (H. L., § 4, p. 4.) The notice of
the town clerk may be in the following form:
COUNTY OF. . . . . . . . . . . . . . . . } SS.
TOWN OF . . . . . . . . . . . . . . . .
To L. M.:
Please take notice that you have been appointed by the commissioner of
highways, overseer in highway district No. . . . . in the town of . . . . . . . . . . . . . .
county of . . . . . . . . . . . . . . , N. Y., for the ensuing year; and you are hereby
27
210 HIGHWAY MANUAL OF NEW YORK.
reqnired to report to the town clerk, within sixteen days after receiving this
notice, the names of all the taxable inhabitants and corporations in your high-
way district liable to be assessed for highway labor therein.
Dated this . . . . day of . . . . . . . . . . . . , 18. . .
O P,
Town Clerk,
INo formal acceptance on the part of the person so appointed
to the office of overseer is necessary. Still the better practice
would be to file a written acceptance, and inform the commissioner
of his intention to serve, or his refusal to do so. When the over-
seer accepts the warrant of the commissioner, as it is commonly
called, his acceptance of the office is deemed conclusive. (H. L.,
§ 34, p. 15.)
§ 23. Penalty for refusal to serve.—A person appointed to the
office of overseer of highways, who refuses or neglects to serve,
forfeits to the town the sum of ten dollars. Such penalty may be
sued for by the commissioner of highways in the name of the
town, to be applied by them in improving the highway and
bridges of the town. (T. L., § 55, p. 54.)
§ 24. Vacancy.—If a person appointed overseer refuses to serve
or his office becomes vacant, the commissioners must, in the same
manner as for an original appointment, appoint some other person
to be overseer. (EI. L., § 4, p. 4.)
This does not authorize the commissioner or commissioners to
reappoint the same person after his refusal or neglect to serve on
the first appointment. They are to appoint some other person in
his stead.
$25. Compensation.—If an overseer is employed more days in
executing the duties enjoined upon him, than he is assessed to
work on the highways, he must be paid for the excess, at the rate
of twelve and one-half cents per hour for each day, and be allowed
to retain the same out of the money that may come into his hands,
but he can not commute for the days he is assessed. (H. L., § 24,
p. 12.)
HIGHwAY MANUAL of NEw York. 211
§ 26. General powers.-Each overseer must repair and keep in
order the highways within his district which are under his con-
trol. This includes the removing of obstructions, and stones, the
destruction of weeds, the collection of fines and commutation
money, without special direction on the part of the commissioner
of highways. He must warn all persons and corporations assessed
to work on the highways in his district to perform work thereon
or pay their assessment to him in money. He must cause loose
stones in the highways to be removed once a month, from the first
day of April to the first day of December. He must cause the
monuments erected, or to be erected, to be kept up and renewed,
so that the boundaries of such highway may be publicly known.
(H. L., § 20, p. 10.) The powers of the overseers relate to main-
taining the highways and are fully considered in the chapter on
“maintenance.”
The overseers, in repairing and keeping in order highways, are
subject to the orders of the commissioners of highways, but a fail-
ure on the part of the commissioner to give such Orders does not
relieve them from their duty in keeping the highway in repair.
They are bound to keep the roads in their district in repair,
whether they receive special instructions from the commissioners
of highways or not. (McFadden v. Kingsbury, 11 Wend, 667; Wen-
dell v. Mayor of Troy, 39 Barb., 329.)
It is their duty to provide a suitable pathway for carriages
and vehicles of proper width and so define it that there shall be
no reasonable danger of its being mistaken; but they are not
required to grade the whole space within the limits of the road so
that travelers can drive over every part of it. (Ireland v. Owego,
etc., Plankroad Co., 13 N. Y., 526.)
The duty of an overseer as to repair of roads does not extend
merely to the bed of the road, but it includes proper railings
or safeguards on their sides or borders where necessary for the
safety and protection of the public. (Hyatt v. Trustees of Ron-
dout, 44 Barb., 385.)
The duty of an overseer to make repairs does not depend upon
his receiving directions from the commissioner to do it. The
statute charges them with it. (McFadden v. Kingsbury, 11 Wend.,
212 HIGHWAY MANUAL OF NEW YORK.
667.) But this does not relieve the commissioner from the duty
of seeing that the roads are kept in repair, and to that end to give
the requisite directions to overseers.
The overseer is not bound to repair roads, until they are pro-
vided with the necessary funds to make such repairs, and they
are not liable to a private action for any damage that may arise
from the roads in their district being out of repair, unless they
have the necessary funds to make the repairs. (Yarlinghouse v.
Jacobs, 29 N. Y., 297; People v. Adsit, 2 Hill, 619.)
$27. Indictment.-An overseer of highways may be indicted for
a willful neglect to keep the roads in his district in repair, under
section one hundred and fifty-four of the penal code, which reads
as follows: “Where any duty is or shall be ºnjoined by law upon
any public officer, or upon any person holding a public trust or
employment, every willful omission to perform such duty where
no special provision shall have been made for the punishment of
such delinquency, is punishable as a misdemeanor.”
§ 28. Penalties.—Every overseer of highways who refuses or
neglects to warn all persons and corporations to work on the high-
ways, when he has been required to do so, by the commissioners,
or any of them, or to collect the moneys that may arise from fines
or commutations, or to perform any of the duties of his office when
required so to do by the commissioners of highways of his town,
and for which no other penalty is attached, shall, for every such
refusal or neglect, forfeit the sum of ten dollars. (H. L., § 23,
p. 11.)
An overseer is liable to a penalty of ten dollars, and also the
amount of taxes for labor remaining unpaid at the rate of one
dollar for each day assessed, for omitting to furnish to the Super-
visor the required list of the labor not performed in his district,
(H. L., § 67, p. 24.) He is also liable to a penalty of ten dollars
for neglecting or refusing to render an annual account to the com-
missioners, and to pay over any balance which may be due from
him. (EI. L., § 69, p. 24.)
HIGHway MANUAL of NEW YORK. 213
• $ 29. Collection of penalties.—The commissioners of highways
must prosecute, in the name of the town, every overseer of high-
ways, for any penalties known to the commissioners to have been
incurred by him. They must also, upon the complaint of any
resident of the town, that any such penalty has been incurred,
prosecute such overseer therefor, if satisfied that the complaint
is well founded. The costs and expenses incurred by the com-
missioners in good faith, in such proceedings, are a town charge,
to be audited by the town board. If the 3ommissioners refuse
or neglect to prosecute for any such penalty, for thirty days after
such complaint has been made, the complainant may prosecute
therefor, in the name of the town, on indemnifying the town for
the costs and expenses of such prosecution, in such manner as the
supervisor may approve. If the commissionar neglect or refuse
to prosecute for any such penalty, knowing that the same has been
incurred, he is liable to a penalty of ten dollars for every such
neglect or refusal, to be recovered by action, in the name of the
town, brought by the supervisor, or by any taxpayer of the town
who may indemnify the town, for the cost and expenses of the
action, in such manner as the supervisor may approve. (H. L.,
§ 23, p. 11.)
§ 30. Annual return.—Every overseer of highways must, on the
second Tuesday preceding the annual town meeting in his town,
within the year for which he is appointed, render to one of the
commissioners of highways of the town, an account in writing,
verified by his oath, and containing:
1. The names of all persons assessed to work on the highways
in the district in which he is overseer.
2. The names of those who have actually worked on the high-
ways, with the number of days they have so worked.
3. The names of all of those from whom penalties have been
collected, and the amounts thereof.
4. The names of those who paid their taxes in money, and the
manner in which the same was expended by him.
5. A list of all persons whose names he has returned to the
supervisor as having neglected or refused to work out their high-
214 HIGHWAY MANUAL OF NEW YORK.
Way assessments, with the number of days and the amount of tax •
so returned for each person, and a list of the lands which he has
returned to the supervisor for non-payment of taxes, and the
amount of taxes on each tract of land so returned; and he shall
then and there pay to the commissioners of highways all money
remaining in his hands unexpended, to be applied by them in
making and improving the highways and bridges of the town, in
such manner as they shall direct; and if he shall neglect or refuse
to render such account, or if having rendered the same, he shall
refuse or neglect to pay any balance which then may be due
from him, he shall, for every such offense, forfeit the sum of ten
dollars. (H. L., § 69, p. 24.)
The return may be in the following form:
To the Commissioners of Highways of the Town of... . . . . . . . . . . .'...., in the
County Of... . . . . . . . . . .te
The undersigned, overseer of highway district No. . . . . . , in said town,
hereby renders the following account pursuant to section 69, of the highway
law:
1. The names of all persons assessed to work on the highways in said district
are as follows:
NAMES. Days assessed.
2. The names of all persons who have actually worked on the highways,
with the number of days they have worked are as follows:
*—
NAMES. Days work
HIGHway MANUAL of NEw YorK. 215
3. The names of all those who have been fined, and the sums in which they
have been fined are as follows:
NAMES. Amount.
4. The names of those who have commuted, and the amount of the commu-
tation, are as follows:

NAMES. Amount.
5. The moneys arising from penalties and commutations have been expended
as follows: (State how.)
6. Names returned to the supervisor of persons who have neglected or
refused to work out their highway assessments, with the number of days and
amount of tax so returned are as follows:

NAMES. Days assessed. Amount of tax.
7. The following is a list of lands returned to the supervisor for non-payment
of taxes:


* * T
NAMES OF OWNERS, Description. *...* | *...* Amount.
L M,
Overseer of Highway District No. . . . .
--- %
216 HIGHWAY MANUAL OF NEW YORK.
COUNTY OF. . . . . . . . . . . . . . }*
TOWN OF. . . . . . . . . . . . . . .
true to the best of his knowledge and belief.
L M,
Overseer of Highway District No....
Subscribed and sworn to before }
me, this....day of...... 18. . .
G. H.,
Justice of the Peace.
CHAPTER IV.
TJse of the highway.
I. By abutting owners and occupants.
II. By the public generally for travel and transportation.
III. By corporations and others for public purposes.
IV. Obstructions and encroachments.
I. By ABUTTING Own ERs AND OCCUPANTs.
Section 1. Title of contiguous owner.
. Rights in general.
. Presumption in relation to the fee.
Fee in municipality.
Carrying on business in highway.
. Maintaining a nuisance.
. Noisome or unwholesome substances in highway.
i
§ 1. Title of contiguous owner.—The owner or occupant of land
contiguous to a street or highway has two distinct rights in rela-
tion to the street or highway, one which he enjoys with all citizens
in common and one which arises from his ownership or occupancy
of contiguous property. If he is owner of the fee of the highway,
his title to the land covered by the highway is absolute and exclu-
sive, subject only to the public easement for which the highway
was acquired.
§ 2. Rights in general.—The owner of the fee is entitled to the
mines, quarries, springs, trees, herbage, earth, the right to drain,
to mine, and to employ the soil for any purpose not inconsistent
with the public right of way. He may divert a spring and use the
water for his own purpose. He may carry water in pipes under
the highway. (Dygert v. Schenck, 23 Wend., 446; Matter of Peti-
tion of Rhinelander, 68 N. Y., 105; Beck v. Carter, 68 N. Y., 283.)
28
218 HIGHWAY MANUAL OF NEw York.
If trees are cut by the highway authorities in laying out the high-
Way, he is entitled to the timber, except so far as it may be used
by the highway officers in front of his premises. (H. L., § 156,
p. 45.) The fruits or nuts of trees planted along a highway, or on
branches which extend from his land over the highway, belong to
him. If the fruit or nuts fall to the ground, they belong to the
owner in fee, but if they are destroyed in consequence of the
use of the highway for proper highway purposes, the owner of the
fee is not entitled to damages. For the infringement of any of his
rights he has all the ordinary remedies of the owner of the free-
hold. (Jackson v. Hathway, 15 John., 447; Gas Light Co. v. Cal-
kins, 62 N. Y., 386.) He may maintain an action against one who
unlawfully cuts and carries away the grass, trees and herbage, and
even against one who stands on the sidewalk in front of his prem-
ises and uses abusive language toward him, refusing to depart;
for such a use of the land constitutes a trespass as much as an
entry on his inclosed premises. (Adams v. Rivers, 11 Barb. 390;
Carpenter v. Owego R. R. Co., 24 N. Y., 655; Gidney v. Earl, 12
Wend, 98; Willoughby v. Jencks, 20 Wend, 96.) The land is his,
subject only to the rights of the public to use it for highway pur-
poses. He may sell it without subjecting himself to any liability
(Whitbeck v. Cook, 15 John, 486; Washington Cemetery v. R. R.
Co., 68 N. Y., 591) and if the highway is abandoned or discon-
tinued, the land reverts to the original owner or his heirs or
assigns.
§ 3. Presumption in relation to the fee.— The presumption is
that the owners of land adjoining a highway are owners of the
fee, if owning the land on but one side, to the center, or if owning
the land on both sides, including the entire width of the highway.
(Bissell v. New York Central Railroad, 23 N. Y., 61; Wager v.
Troy Railroad, 25 N. Y., 529.) The presumption, however, is one
which may be rebutted, for one man may own the fee of the
adjoining land and another the fee of the land covered by the
highway. As a general rule, a conveyance which describes land
as bounded along, upon, or to a highway, infers that the middle
of the street was intended (Child v. Star, 4 Hill, 369; Hammond V.
McLachlan, 1 Sandf., 323), while, if the boundary is described as
HIGHway MANUAL of NEw YorF. 219
by the side, running along the margin, or by the line of a high-
way, the fee to the highway is probably not conveyed. (Jones v.
Cowman, 2 Sandf., 234; Augustine v. Britt, 15 Hun, 395.)
§ 4. Fee in municipality.—Where the fee of the land covered by
the highway is in the municipality, the abutting owner is entitled
to light, air and free access to his premises, but apart from these
he has no greater rights to the highway in front of his premises
than any other citizen, and this for the very simple reason that
the title to the land is in another.
§ 5. Carrying on business in highway.—The right of the public
to an uninterrupted passage in a highway being paramount to
the owner's rights in the soil, it will be unlawful for him to carry
on any part of his business therein to the annoyance of the public.
A temporary occupation by persons engaged in building, or in
receiving or delivering goods from stores or warehouses, taking up
or Setting down passengers from a coach or omnibus, or the like,
is allowed from the necessity of the case; but a systematic and
continued encroachment is not allowable. (People v. Cunning-
ham, 1 Denio, 524; Callahan v. Gilman, 107 N. Y., 360.) As to
building materials necessarily placed in the street, the consent
of the local authorities is usually required. The necessity of
such occupation need not be absolute, excluding the possibility
of performing the labor in a different way, but must be reasonable
under the circumstances. For instance, a wagon loaded with
fuel may doubtless stand in front of a private dwelling for a
sufficient time to unload, if reasonable and convenient, although
there may be a temporary obstruction of the highway, and the
fuel might be conveyed to the house in a different manner. It
seems that one doing business in a populous city has the right
to temporarily obstruct the sidewalk in front of his place of
business, for the purpose of loading merchandise, but he should
not unneccessarily incumber the sidewalk, or continue the obstruc-
tion for an unreasonable length of time. This right has, however,
been questioned. (Richardson v. Barstow [Sup. Ct., Sp. T.], 36
N. Y. State Rep’r, 983.) This subject will be discussed more at
length under the subject of encroachments and obstructions.
220 HIGHWAY MANUAL OF NEW YORK.
§ 6. Maintaining a nuisance,—-A. person who unlawfully obstructs
or does an act tending to obstruct a street or highway is guilty
of maintaining a public nuisance, and if he willfully refuses or
omits to perform any duty relating to the removal of such
nuisance he is guilty of a misdemeanor, punishable by an impris.
onment for not more than one year, or by a fine of not more than
five hundred dollars or by both, and is liable to a penalty of five
dollars for each offense. (See Obstructions and Encroachments.)
§ 7. Noisome or unwholesome substances in highway.—A.
person who deposits, leaves or keeps upon or near a highway or
route of public travel, either upon the land or water any noisome or
unwholesome substance, or carries on a business, trade or manu-
facture noisome or detrimental to the public health, is guilty of
a misdemeanor, punishable by a fine of not less than one hundred
dollars, or by imprisonment for not less than three or more than
six months. (Penal Code, § 431, p. 87.)
II. BY THE PUBLIC GENERALLY FOR TRAVEL AND TRANSPORTATION.
Section 8. Rights in general.
9. Right to use land of adjoining owners.
10. Use of the road.
11. Travelers in vehicles.
12. Travelers on horseback.
13. Travelers On foot.
14. Rights of bicycles and tricycles.
15. Right to stop.
16. Right to drive cattle in highway.
17. Steam traction engines and dangerous animals.
18. Liability for breaking bridge.
19. Running horses.
20. Driving over bridges.
21. Intemperate drivers.
22. Owners of carriages liable for acts of drivers.
23. Leaving horses untied.
24. Depasturing highways.
HIGHWAY MANUAL OF NEW YORK. 221
§ 8. Rights in general.—The rights of the public to the use of
the highway are substantially the same whether the fee is in
the municipality or in the abutting owners. The public is
entitled to an uninterrupted passage, subject only to the tempor-
ary obstruction of the highway for a reasonable time in cases of
necessity. A right of passage is “the liberty of all
citizens to pass and repass on foot, on horseback and in
carriages and wagons.” The right also includes the right to drive
horses and cattle along the highway. A citizen has a lawful right
to drive herds of horses and cattle over the road, and if he uses
ordinary care, diligence and skill he is not liable for injury done
by the animals to adjoining property. (Elliott on Highways, p.
316.) If an abutting owner chooses to leave his land lying open,
he does so subject to risk of cattle driven on the highway occa-
sionally straying on his premises. (See Elliott on Highways, p.
316, and cases cited.)
An inference with the right of the public to free passage con-
stitutes a public nuisance, which no length of time will legalize.
(Elliott on Highways, p. 475 and cases.)
§ 9. Right to use land of adjoining owners.-If a highway be
impassable or founderous, or even dangerous to be traveled over,
or incommodious from being out of repair, or from other causes,
the public have a right to a new way for the time being, and for
this purpose may go on the adjoining land, but a traveler must
go on it as near the highway and use it as little as possible. If
the land is inclosed the traveler may remove the fences. If the
land is under cultivation, the traveler may nevertheless use it,
doing no unnecessary injury. This privilege does not extend to
persons traveling private roads. (Williams v. Safford, 7 Barb.,
309; Taylor v. Whitehead, Doug., 745; Bullard v. Harrison,
4 M. and S., 387; White v. Wiley, 36 St. Rep., 102.)
§ 10. Use of the road.—In the use of the road the public is subject
to the reasonable regulations of the municipal authorities having
jurisdiction of the highway. If, in the use of extraordinary or
unusual vehicles the highway is injuried, the persons using thern
222 HIGHw AY MANUAL OF NEW YORK.
are liable to the town for the damages sustained. The law
requires that the highway shall only be used for the purposes
which may be presumed to have been contemplated when the
highway was laid out. Where the injury to the highway is only
such as results from ordinary wear there is no liability on the part
of the traveler.
§ 11. Travelers in vehicles.—Persons traveling on a highway are
required on meeting persons traveling in the opposite direction
to seasonably turn their carriages to the right of the center of
the road, so as to permit such carriages to pass without interfer-
ence or interruption, under a penalty of five dollars for every
neglect or offense, to be recovered by the party injured, in addition
to any actual injury he may have sustained. (H. L., § 157, p. 46.)
The statute includes persons in stage coaches, wagons, carts,
sleighs, sleds, bicycles, tricycles and every other carriage or
vehicle used for the transportation of persons or goods, or either
of them. (H. L., § 162, p. 47.) Presumptively, a liability is
incurred by a person who refuses to obey the statute to the
injury of another who is free from contributory negligence.
(Pilze v. Bosworth, 7 N. Y. State Rep., 665.)
It is not the center of the smooth or most traveled part of the
road that is the dividing line, but the center of the worked part,
although the whole of the smooth or most traveled part is upon
one side of that center. (Earing v. Lansingh, 7 Wend., 185.) It
is no defense that the party had no design to offend; that he
attempted to prevent collision; that the road on his side is rough
and rutty; or more difficult for him to turn out than the other
party. (Id.) Unless the obstacles to turning out are insuperable
or extremely difficult he is without excuse. In winter, however,
the center of the road is the center of the beaten or traveled track,
without reference to the worked part. (Smith v. Dygert, 12 IRart,
6.13: Jaquith v. Richardson, 8 Met., 213.)
The law of the road is not inflexible and it has been held that
a light vehicle ought to give way to a wagon heavily loaded, but
the loaded wagon should stop if due care requires it. (Wayde v.
Carr, 2 Dow. & Ry, 255; see Elliott on Highways, p. 619.)
HIGHWAY MANUAL OF NEw York. 223
One who drives on the wrong side, assumes the risk, and must
use greater care than if he had kept on the right side. (Brooks v.
Hart, 17 N. H., 307; Elliott on Highways, 620; Cooley on Torts,
p. 666.) If a collision takes place the presumption is generally
against the party on the wrong side. (Burdick v. Worrall, 4
Barb., 596; Brooks v. Hart, 14 N. H., 307.) Especially is this true
in the dark. (Cruden v. Pentham, 2 Esp., 685.) 13ut the fact that
one is on the wrong side does not excuse the exercise of ordinary
care on the part of the person on the right side. (Parker v.
Adams, 12 Met., 415; Hoffman v. Union Ferry Company, 68 N.Y.,
385; Lane V. Atlantic Works, 107 Mass., 104.) Persons lawfully
using a public street owe to each other the duty of exercising
ordinary care, and each is justified, in the absence of anything to
the contrary, in assuming that the other will so act. Taker V.
Fehr, 97 Pa. St., 70.)
* Seasonably turn,” means that the travelers shall turn to the
right in such season that neither shall be retarded in his progress
by the other occupying his half of the way, when he may have
occasion to use it in passing. (Brooks v. Hart, 14 N. H., 310;
Spooner v. Brooklyn, etc., R. R. Co., 54 N. Y., 230.) Of course this
rule does not apply to street cars, which travel on a track and
can not turn to the right or left. (Hegan v. Eighth Ave. R. R. Co.,
15 N. Y., 380; Whitaker v. Eighth Ave. R. R. Co., 51 N. Y., 295)
Nor does it apply to a vehicle meeting a street car. (Id.) The
vehicle may turn to either the right or left. (Id.)
The provisions of the statute apply only to the meeting of car-
riages coming from opposite directions. Where both are traveling
in the same direction, a driver may pass on the most convenient
part of the road. (Aston v. Heaven, 2 Esp., 533.)
So a traveler may use the middle or either side of the road, and
is not bound to turn aside for another traveling in the same direc-
tion, to pass, provided there is sufficient room. Adolph v. Central
Park, etc., R. R. Co., 76 N. Y., 530.) If not, it is probably his
duty, on request made, to afford to the other traveler, an equal
share of the road, if that be adequate and practicable.
If two persons are traveling in the same direction, and the
hindmost traveler, in attempting to pass the other, carelessly or
negligently collides with him and injures him, or, if he recklessly
224 HIGHWAY MANUAL OF NEW YORK.
drives his horse so as to run into the other's carriage and injures
it, an action for damages may be brought by the party injured,
if he himself was free from fault and could not have avoided the
collision by the use of ordinary care. (Center v. Tumey, 17
Barb., 94.)
One may drive along a street railroad, yet, as the car has the
exclusive right to any part of the track, he is bound to turn off,
So as to not to unnecessarily delay the car, and lie must listem
for whatever signal may be made from the car and must not wait
for the signal, but should look behind him from time to time, so as
not to make the car slacken speed. (Adolph V. Central Park, etc.,
R. R. Co., 76 N. Y., 530.)
This law of the road, however, is subject to some exceptions.
An ambulance is given the right of way and other drivers should
heed the warning bell of the ambulance driver and give him free
passage. The driver may assume that his warning will be
heeded, and that other vehicles will give him the road. (Pyrne
v. Knickerbocker Ice Co., 4 N. Y. Supp., 531.) So in the case of
fire engines, mail Wagons and police patrol Wagons, the public
emergency or the necessity of haste is such that the vehicle is
entitled to the right of way, free from the impediment of other
Vehicles,
§ 12. Travelers on horseback.-The statute regulating the law
of the road does not apply to travelers on horseback.
A horseback rider may turn to either side to avoid collision,
governing himself with ordinary care and prudence. (Dudley
v. Bolles, 24 Wend., 465.) Long custom, however, has sanctioned
the rule, that a person on horseback should yield the traveled
path to a Wagon or other Vehicle.
§ 13. Travelers on foot.— The law of the road does not affect
persons on foot passing on the sidewalks. (Grant v. City of Isrook-
lyn, 41 Barb., 381.) All persons have a right to walk in a high-
way or street and whether they are or are not on the crosswalk,
are entitled to the exercise of reasonable care on the part of
persons driving along it, while they, themselves, are bound to
exercise the same reasonable care. (Boss v. Lilton, 5. Car. and
HIGHwAY MANUAL OF NEw York. 225
Payne, 407.) A person driving horses along the streets is bound
to anticipate that travelers on foot may be at crossings and must
take reasonable care not to injure them. (Murphy v. Orr, 96
N. Y., 14.) While a foot passenger has no priority of right in the
street or highway, he has the right to cross where he pleases, if
he does so with due caution. (Moebus v. Herrmann, 13 N. Y.
St. Rep., 648; 108 N. Y., 349; Murphy v. Orr, 96 N. Y., 14.)
Vehicles and foot passengers have equal rights in the street or
highway and both should exercise the care and caution that the
circumstances demand.
The driver of a street car is subject to the same obligations in
this respect, as the driver of any other vehicle. (Hyland v.
Yonkers, etc., R. R. Co., 15 N. Y. St. Rep., 824.)
$14. Rights of bicycles and tricycles.— Officers having charge of
a highway, street, park-way, driveway, or place, are prohibited
from passing any rule excluding a person using a bicycle or tri-
cycle therefrom, at any time, when the same is open to the use of
other pleasure vehicles. But they may pass rules and ordinances
"determining the speed of bicycles or tricycles, or requiring or pro-
hibiting the use of bells, lamps and the like, or prohibiting their .
use on the foot-path or sidewalk. (H. L., § 163, p. 47.)
§ 15. Right to stop.–Travelers, whether on foot or in carriages,
have a right to stop a reasonable time by the roadside for their own
convenience, provided they do not unduly interfere with the rights
of others. Thus hacks or omnibusses may stop to unload pas-
sengers. A traveler on foot may stop to tie his shoe or get a drink
at a hydrant or fountain without losing his rights as a traveler.
But this right must not interfere with the rights of others. Thus,
it is unlawful for coaches to congregate in a crowded street and
remain standing for an unreasonable length of time. (ITlidge v.
Goodwin, 5 Car. & Payne, 190.) And it has been held that where
a man hitched his wagon so that the wheels extended into the
beaten track, he was guilty of contributory negligence, and could
not recover damages for an accident occasioned by a collision.
(Murray v. McShane, 52 Md., 217; Duffy v. Dubuque, 63.Ia, 171.)
99
226 HIGHWAY MANUAL OF NEW YORK.
§ 16. Right to drivecattle in highway.—It is lawful to drive cattle
in a highway, but due care must be used, depending on the loca-
tion and nature of the highway. If reasonable care is used in
driving cattle along a highway, and, notwithstanding such care,
they escape and go upon adjoining land which is unfenced, the
Owner of the cattle is not liable where he uses reasonable care and
promptness in removing them. (See Elliott on Highways, p. 633.)
$17. Steam traction engines and dangerous animals.-A person
who drives or causes to pass along a public highway a dangerous
animal, or a vehicle or engine propelled by steam, unless a person
over twenty-one years of age precedes such animal, vehicle or
engine by at least one-eighth of a mile, carrying a red light if in
the night-time, and giving warning to all persons he meets of the
approach of such animal, vehicle or engine, is punishable by
imprisonment not exceeding six months, or by a fine not exceed-
ing two hundred and fifty dollars, or by both. (H. L., § 155,
p. 45; Penal Code, § 640, p. 88.)
§ 18. Liability for breaking bridge.—A person who drives over a
bridge a vehicle and load together weighing four tons or over is *
liable for all damages resulting to person or property by reason of
the breaking of such bridge. (H. L., § 154, p. 45.)
§ 19. Running horses.—A person driving a vehicle upon a public
highway who unjustifiably runs the horses drawing the same, or
causes or permits them to run, is guilty of a misdemeanor, punish-
able by a fine of not more than five hundred dollars, or by imprison-
ment for not more than one year, or both. (Penal code, § 666,
p. 88.) What constitutes an unjustifiable running depends
largely on the circumstances of each case, taking into considera-
tion the location of the highway, the number of vehicles traveling
upon it, the ordinary speed of vehicles upon the particular high-
way, and the like.
$ 20. Driving over bridges.—A person who rides or drives
faster than a walk over a bridge upon which a notice has been
placed in pursuance of law, forfeits to the town the amount fixed
by the highway commissioners and specified in the notice. The
HIGHw AY MANUAL OF NEw York. 227
amount must not exceed five hundred dollars for one offense, and
is recoverable by the highway commissioners, in the name of the
town, to be expended in the improvement of highways and bridges.
(H. L., §§ 143, 144, p. 43.)
§ 21. Intemperate drivers.-A person owning a carriage for the
conveyance of passengers upon a highway who employs or con-
tinues in his employment a driver addicted to drunkenness or to
the excessive use of spirituous liquors is liable to a penalty of 1íve
dollars a day during the time he keeps such driver in his employ-
ment. The penalty may be recovered by the highway commission-
ers, in the name of the town, to be applied to the improvement of
highways. (H. L., § 158, p. 46.)
Any person owning such a carriage on whom a sworn notice of
a passenger, stating that the driver while actually driving such
carriage has been guilty of intoxication to such a degree as to
endanger the safety of the passengers, has been served, must imme-
diately discharge such driver; and if he retains him or has him
in his service within six months after the receipt of such notice,
he is liable to a penalty of five dollars a day for every day during
which he keeps such driver in his employment after receiving
such notice, recoverable in the same manner and for the same
purpose. (H. L., § 159, p. 46.)
The term carriage includes every sort of carriage or vehicle
used for the transportation of passengers. (H. L., § 62, p. 47.)
§ 22 Owners of carriages liable for acts of drivers.--The owners
of every sort of carriage or vehicle running or traveling on the
highway for the conveyance of passengers, is liable jointly and
severally to a person injured, for all injuries and damages done by
his driver, while driving such carriage, whether the act occasion-
ing such injury or damage is willful or negligent, in the same plan-
ner as the driver would be personally liable. (II. L., § 161, p. 46.)
The conductor of a street car is not a driver of a carriage within
the meaning of this law and the company is not liable for his will-
ful act done without the course of his employment. (Isaacs v.
Third ave. R. R. Co., 47 N. Y., 122; Whitaker v. Eighth ave. R. R.
Co., 51 N. Y., 295)
228 HIGHWAY MANUAL OF NEW YORK.
§ 23. Leaving horses untied.—The driver of a carriage for convey.
ing passengers for hire, who leaves the horses attached thereto
while passengers are within, without hitching such horses or
placing the lines in the hands of another person, is liable to a
penalty of twenty dollars, recoverable by the commissioners of
highways in the name of the town, to be applied in the improve-
ment of highways and bridges. (H. L., §§ 160, 164, p. 46.)
§ 24. Depasturing highways.-At common law the public had no
right to depasture a highway, since the freehold and all its profits
belong to the owner of the soil. A different rule was formerly
adopted in this state, but the code of civil procedure now prohibits
cattle, horses, colts, asses, mules, swine, sheep or goats from
running at large or being herded or pastured in the highways, and
prescribes penalties for the violation of such prohibition. (Code
Civ. Pro., § 3082ff. See p. 89.)
III. By CoRPORATIONS AND OTHERS FOR PUBLIC PURPOSEs.
Sections 25. General rule.
26. Steam railroads.
27. Intersection of highways by railroad.
28. Street railroads.
29. Elevated railroads.
30. Telegraph and telephone lines.
31. Pipe lines.
32. Gas, water and sewer pipes; electric-light poles.
33. Water works corporations.
34. Turnpike and plank-road corporations.
§ 25. General rule.—The Constitution of the State provides that
private property shall not be taken for a public use without just
compensation, and that when private property is taken for a pub-
lic use, the compensation to be made therefor, when such compen-
sation is not made by the State, shall be ascertained by a jury
or by not less than three commissioners appointed by a court of
record. There is no power in the Legislature to take one man’s
property and confer it on another for a private purpose, either with
or without compensation. But the Legislature may authorize the
acquisition of property by corporations or individuals for purposes
HIGHWAY MANUAL OF NEw Yorf. 229
which are of a direct public benefit, although of pecuniary profit
to their promoters. On this principle the Legislature may author.
ize the construction of railroads, the erection of telegraph and tele-
phone lines, the laying of water pipes, and the like.
When a highway has been laid out or dedicated to the public
use, the public has acquired an easement for highway purposes
Only, and, subject to the regulations of the municipal authorities,
a right to use the street for any purpose which was contemplated
When the highway was acquired by the municipality. The ques-
tion then arises, What is a highway purpose ? In general it may
be defined as the right of the public to pass or repass, on foot or in
vehicles, without interference or obstruction, subject only to the
requirements of turning out to allow a person traveling in the
opposite direction to pass. Anything which constitutes a perma-
nent or substantial appropriation of the highway for other than
highway purposes, imposes on the owner of the fee a new and
additional servitude, for which he is entitled to compensation.
Neither the Legislature nor the local authorities can consent to
Such an appropriation, for it is a taking of private property with-
out just compensation within the prohibition of the Constitution.
§ 26. Steam railroads.--Where steam railroads were first intro-
duced it was urged that the occupation of the street was not an
additional servitude, but the courts held that the appropriation of
a highway by a steam railroad was not a highway purpose or
included in the public easemºnt, and that the Owner of the fee
was entitled to compensation.
$27. Intersection of highways by railroad.—A railroad corporation
is prohibited from constructing its road in, upon or across a city
street without the assent of the corporation of such city, or across,
upon or along a highway or street in a town or village, without
an order of the Supreme Court of the district made at a special
term, after at least ten days' notice to the commissioners of high-
ways of the town or board of trustees of the village. The railroad
corporation must restore the highway or street to its former state,
or to such state as not unnecessarily to impair its usefulness, and
may carry its track under or over such highway or street. If an
230 HIGHWAY MANUAL OF NEw York.
embankment or cutting makes a change in the line of the highway,
With a view to a more easy assent or descent, it may construct
such highway on a new line, and take additional land, if necessary,
by condemnation. Such land becomes part of the highway. (R.
R. L., § 11, p. 67.)
§ 28. Street railroads.-The constitution provides that a street
railroad shall not be constructed or operated unless the consent
of the owners of one-half in value of the property bounded on,
and the consent of the local authorities having the control of
that portion of a street or highway upon which it is proposed to
Operate such railroad be first obtained, or if the consent of the
property Owners can not be obtained, that the general term of the
Supreme Court of the district consent to such construction or
Operation. If the fee to the street is in the municipality, the
construction of a street railroad is not ordinarily an interference
with the rights of abutting owners. (Mahady v. Bushwick R. R.
Co., 91 N. Y., 148.)
The construction of a street surface railroad involves a per-
manent appropriation of a portion of the highway, and imposes
an additional burden on the land, entitling the owner to compen-
sation. (Craig v. Rochester City R. R. Co., 39 Barb., 494;
39 N. Y., 404; Bloomfield Gas Light Co. v. Calkins, 62 N. Y.,
at p. 386.) By granting consent to the construction of the road
he does not estop himself from claiming compensation for the use
of his land. (31 Hun, 72.) The cºnstitutional consent and the
acquisition of the property are entirely distinct. He has the
right to assume that the railroad corporation will acquire an
easement in his land, either by agreement or condemnation. If
this is not done, he may obtain an injunction against the con-
struction of the road, even though his consent has theretofore
been given.
§ 29. Elevated railroads. Where the fee is in adjacent owners, an
elevated road is an additional 'burden. Where the fee is in the
municipality, it may be constructed with the consent of the
municipality, but the abutting owner may be entitled to compen-
HIGHWAY MANUAL OF NEW YORK. 231
A
}
sation, nevertheless, for the interference by the railroad with
access to his premises, and his right to receive light and air by
way of the street. (Story v. Elevated R. R. Co., 90 N. Y., 122;
Kane V. N. Y. Elevated R. R. Co., 125 N. Y., 164; Egerer v. N. Y.
Central R. R. Co., 130 N. Y., 108; Reming v. N. Y., Lackawanna
R. R. Co., 128 N. Y., 157.)
§ 30. Telegraph and telephone lines.—The construction of a tele-
graph or telephone line by the erection of poles and the placing
of wires thereon within the limits of a highway constitutes an
additional burden upon the fee of the land of that portion of the
highway on which they stand, not contemplated or included in
the original appropriation or dedication of the land for highway
damages; and the statute authorizing the construction of such
line simply gives consent so far as the public is concerned. (Stran-
ahan v. Thompson, 98 N. Y., 6; Blushfield v. Empire St. Tel. Co.,
Sup. Ct., Sp. T., 18 N. Y. Supp., 250.) The owner of the fee is,
therefore, entitled to compensation for the occupation of his prem-
ises by the company’s poles, and, if the right is not acquired by
agreement or condemnation, may enjoin their erection or use, even
though the consent of the local authorities had theretofore been
obtained.
§ 31. Pipe lines.—When the pipes of a pipe-line corporation
necessarily cross a highway, the line of pipe must be made to cross
under such highway with the least injury practicable, and unless
the right to cross has been acquired by agreement, compensation
must be ascertained and made to the owners thereof in the Inam-
ner prescribed in the condemnation law. (Trans. Corp. L., § 43,
p. 71.) The occupation of a highway by such a corporation is
clearly an additional servitude on the fee of the land. The statute
in its terms only appears to authorize compensation to the munici-
pality, but apart from the statutes, the Constitution and the prin-
cipals of the common law require that compensation be made to the
owner of the fee for a burden imposed on his premises, which was
not acquired when the land was dedicated or laid out as a
highway.
232 HIGHWAY MANUAL OF NEw YorF.
§ 32. Gas, waterand sewer pipes: electric light poles.—An attempt
has been made to draw a distinction between the public easement
in a country road and a city or village street, in relation to laying
gas, water and sewer pipes, and the erection of electric light poles.
There is no doubt that in a city or village the streets may be used
for such purposes without imposing an additional burden upon the
land or requiring compensation to the owners of the fee. (Electric
Construction Co. v. Heffernan, 34 N. Y. St. Rep., 436; Consumers'
Gas Co. v. Congress Springs Co., 39 N. Y. St. Rep., 703; Johnson v.
Thompson-Houston Elec. Co., 54 Hun, 469; Gas Light Co. v. Cal-
kins, 62 N. Y., 386; Van Brunt v. Town of Flatbush, 128 N. Y.,
52, 55.) In the last case the court said: “In the ordinary country
highways, the public have simply an easement in the soil for
traveling, and the maintenance of the highway for that purpose,
and the soil in such highway cannot ordinarily be subjected to
any other burden or easement than those growing out of or con-
nected with the necessities of public travel. The public easement
in the streets of cities and villages is more extensive. They may
|be used for the laying of water and gas pipes and the construction
of sewers and for some other purposes. The public generally have
an interest in and are benefited by such improvements, and they
are necessities of modern life.” The whole question is, however,
unsettled. If the erection of electric light poles was necessary to
light a country road just outside the corporate limits of a village,
it is doubtful if the rule in Van Brunt v. Town of Flatbush would
be applied. Each case depends on its own peculiar facts, and
no clear distinction in principle can be drawn between the streets
within and without a city or village.
But probably water, gas, sewer or electric light line could not be
constructed along a country highway for the purpose of connecting
two or more villages or cities, or furnishing a supply of water, gas
or electric light to a city or village, without compensation to the
owners of the fee.
The commissioners of highways may, on the Written application
of a resident of their town, grant a written permission to lay and
maintain water pipes and hydrants in the highways outside of cities
and villages, but not under the traveled part except to cross the
same, for the purpose of supplying premises with water, on con-
HIGHwAY MANUAL OF NEW YORK. 233
*
dition that such pipes shall be laid so as not to interfere with pub-
lic travel upon the highway. The applicant must replace all earth
removed, and leave the highway in as good condition as before the
laying of such pipes. (H. L., § 14, p. 8.) The application and
permission may be in the following form:
Application to Lay Water-pipes in the Highway.
To the Commissioners of Highways in the Town of... . . . . . . . . . . . . . . . . . . . . . . . . 2
$n the County of... . . . . . . . . . . . . . . . . . . .
The undersigned, an inhabitant of the said town of... . . . . . . . . . ........... >
does hereby make application to you for permission to lay and maintain water-
pipes and hydrants under ground, within the highways of Said town, pursuant
to section 14 of the highway law, as follows: (Here describe where the pipes
are proposed to be laid.)
Dated this....day of... . . . . . . . . . . . . . 18. . .
L. M.
Permission to Lay and Manitain Water-pipes in Highway.
The undersigned, commissioners of highways of the town of . . . . . . . . . . . . . . 2
in the county of... . . . . . . . . . . . . . , on the written application of L M, do hereby
grant permission to the said LM to lay and maintain water-pipes and hydrants
under ground within the highways of said town, as follows: (Here describe
where the pipes are to be laid.) But such pipes are not to be laid under the
traveled portion of the highway, except to cross the same for the purpose of
Supplying premises with water; and this permission is upon condition that
Such pipes shall be so laid as not to interrupt or interfere with public travel
upon the highway, and that the applicant shall replace all earth removed, and
leave the highway in all respects in as good condition as before the laying of
Such pipes.
Dated this....day of................ , 18...
t; © A. B,
C D,
E F,
Commissioners of Highways.
§ 33. Water works corporations.—The highway commissioners
of a town, the board of trustees of a village or the common council
of a city, may authorize the formation of water works corpora-
tions therein, for supplying such town, village or city with water.
A corporation which has obtained such permit may lay and main-
tain pipes and hydrants for delivering and distributing water
in any street, highway, or public place of the town, village or
city in which it had obtained such permit. It is also authorized
to lay its pipes in the streets, avenues or public places of an
adjoining town, village or city. (Trans. Corp. L., § 82, p. 71.)
30
234 HIGHWAY MANUAL OF NEW YORK,
§ 34. Turnpike and plank-road corporations.—The supervisor
and commissioners of highways, or a majority of them, may agree
in writing, with a turnpike or plank-road corporation for the use
of any part of a public highway therein, required for the construc-
tion of such road, and the compensation to be paid by the Corpora-
tion for taking and using such highway for such purpose, on first
obtaining consent of at least two-thirds of all the owners of land
bounded on or along such highway, which agreement must be
filed and recorded in the town clerk's office. If such agreement
can not be made, the corporation may acquire the right to take
such highway for such purpose by condemnation. The compensa-
tion therefor, shall be paid to the commissioners of highways, to
be expended in improving the highways of the town. (Trans.
Corp. L., § 122.)
IV. OBSTRUCTIONS AND ENCROACHMENTS.
Section 35. General doctrine.
36. Carrying on business in highway.
37. Abatement of nuisances.
38. Liabilities for maintaining obstructions.
39. Loose stones in highway.
40. Fallen trees in the highway.
41. Weeds in highway.
42. Snow in highway.
§ 35. General doctrine.-The general doctrine is that the public
are entitled to the street or highway in the condition in which
they placed it; and whoever, without special authority, materially
obstructs it, or renders its use hazardous, by doing anything upon,
above or below the surface is guilty of maintaining a nuisance,
for which he is liable in damages to a person directly injured
and to indictment on behalf of the people. Thus it is a nuisance
to place logs in a highway where they are not needed in repairing
or improving it, even though they are placed at the side of the
traveled path. (Johnson v. Whitfield, 18 Me., 286.) It is a
nuisance to erect a gate or a fence across a highway or to con-
struct a building thereon, or to cut a ditch or mill-race across it
without bridging the same, and in general, to unnecessarily or
HIGHwAY MANUAL OF NEw York. 235
permanently occupy the highway in any manner other than for
highway purposes. (Kelly v. Commonwealth, 11 Serg. & Rawl.,
345; Stetson v. Faxon, 19 Pick, 147; Dygert v. Schenck, 23 Wend.,
445.) The legislature, by virtue of its general control over public
streets and highways, has the power to authorize structures in
the streets for the convenience of business that under the prin-
ciples of the common law would be obstructions or encroachments,
and may delegate the power to the governing body of a munici-
pality. (Hoey v. Gilroy, 129 N. Y., 132.) Thus the town, village
or city authorities may, if empowered by statute, authorize and
regulate the use of awnings, stands for the exhibition of goods
and the like, in the public streets. But apart from these excep-
tions “public highways belong, from side to side and end to end,
to the public.” Any permanent or unnecessary obstacle to travel
in a public street or highway is a nuisance although space may
be left for the passage of the public. . The public are not con-
fined to the traveled roadway. Thus a bay-window projecting
three or four feet beyond the line of the street has been held a
public nuisance, which a municipal ordinance, without authority
of statute could not justify. (Reimer's Appeal, 100 Pa. St., 182.)
Although the power to authorize obstructions may be delegated
to a municipality, in the absence of a provision of law on the
Subject, a municipality has no more right to license or maintain
a nuisance than an individual, and for a nuisance maintained on
its own property, a municipality is liable the same as an indi.
vidual. Nor does a municipal ordinance declaring a thing a
nuisance necessarily make it one. No length of time will legalize
a public nuisance, such as the obstruction of the highway, or
give the party maintaining it a right to continue it.
§ 36. Carrying on business in highway.—The legislature may
authorize certain obstructions in the street or highway for busi-
ness convenience, and apart from legislative authority a tem-
porary occupation of a part of a street or highway, by persons
engaged in building, or in receiving or delivering goods from
stores or warehouses, or the like, is allowed from the necessity
of the case. (Hoey v. Gilroy, 129 N. Y., 132.) So, one who has
236 HIGHWAY MANUAL OF NEw YorF.
occasion to leave a load in a highway must remove it with prompt-
neSS. If he let it remain there an unreasonable length of time
it may be removed as a nuisance.
It is not sufficient, however, that the obstructions are neces.
Sary with reference to the business of him who erects and main-
tains them, They must be reasonable with reference to the
rights of the public. (Callahan v. Gilman, 107 N. Y., 360.) The
Court said in a certain case where a wagoner was convicted of
occupying one side of a public street, before his warehouse, several
hours a day, in loading and unloading wagons: “If the nature of
of the defendant's business was such as to require the loading and
unloading of so many more wagons than could conveniently be
contained within his own private premises, he must either enlarge
his premises or remove his business to some more convenient
spot.” (Rex. v. Russell, 6 East., 427.)
It is doubtful if the sidewalk can properly be occupied by
wagons, even for a temporary and necessary business purpose. In
a recent case the court said: “The sidewalk is constructed for
and allotted to the use of pedestrians, and its obstruction by
defendants backing teams across it to load and unload goods from
their store cannot be justified on the ground that it is necessary.”
(Richardson v. Barstow, 36 N. Y. St. Rep. [Sp. Term], 983.)
§ 37. Abatement of nuisances.—Ordinarily a person who is not
specially injured has no right to abate a nuisance in the highway;
but if an encroachment interferes with a person's individual right,
as the right to travel along the highway, he may remove the
encroachment. Thus, if a highway is obstructed by a gate, a
traveler may remove it in order to pass. He has no right to con-
vert an obstruction to his own use. It is safest before proceeding
ing to abate a nuisance without resort to law, to give notice to the
responsible party, but it seems this is not essential to one who has
unlawfully obstructed a highway.
The commissioners of highways shall serve on the owner or occu-
pant of lands adjoining that part of a highway in which an
obstruction or encroachment exists, a written notice specifying the
extent and location thereof, and directing such owner or Occupant
HIGHWAY MANUAL OF NEw York. 237
to remove the same within a specified time, not more than sixty
days after the service of the notice. The notice may be in the fol-
lowing form:
To T W:
You are hereby notified by the undersigned commissioners of highways of
the town of................ , in the county of . . . . . . . . . . . . . . . . , that the high-
way in highway district No. . in said town adjoining the premises owned (or
occupied) by you (state where) have been encroached upon (or obstructed) to
the extent of (state how much) by the erection of a (or as the case may be) and
you are hereby directed to remove the same within sixty days after the service
of this notice.
Dated this...... day of. . . . . . . . . . . . . . 18...
A B,
C D,
E F,
Commissioners of Highways.
The description should be full and precise as to the place and
extent of the encroachment. The occupant should be placed
beyond all doubt as to the location and nature of the encroachment.
If the owner or occupant neglects or refuses to remove it within
the time specified in the notice he forfeits to the town the sum of
twenty-five dollars. The commissioners may remove such obstruc-
tion or encroachment at the expense of the town, and recover the
expense of the owner or occupant, or they may bring an action in
any court of competent jurisdiction to compel such owner or occu-
pant to remove such encroachment or obstruction. The action
shall be in the name of the town. . (H. L., § 105, p. 36.)
§ 38. Liabilities for maintaining obstructions.—A person who
obstructs or encroaches upon a highway, unlawfully fills up or
places an obstruction in a ditch for draining water from a high-
way, is liable to a penalty of five dollars for each offense, recover-
able by the commissioners of highways in the name of the town,
for the improvement of highways and bridges. (H. L., §§ 104, 164,
pp. 36, 47.)
Moreover, by the Penal Code such obstruction is made a public
nuisance, and the person maintaining it is guilty of a misdemeanor,
punishable by a fine of not more than five hundred dollars, or by
not more than one year's imprisonment, or by both. (P. C., §§ 385,
387, p. 87.)
238 HIGHwAY MANUAL OF NEW YoFK.
A person maintaining a nuisance in a highway is liable in
damages to a person who by reason thereof has sustained a special
injury. Thus an individual who receives a bodily hurt, or suffers
damage to his horse or carriage in consequence of a collision
with an obstruction in the highway is specially injured and may
maintain an action against the author of the obstruction. But
the injury must be special in its nature, and not a damage which
is sustained by the rest of the community as well. (Lansing V.
Smith, 8 Cow., 146; Butler v. Kent, 19 John, 223; Pierce v. Dart,
7 Cow, 609; Mills v. Hall, 9 Wend, 315)
$39. Loose stones in highway.—The overseer must cause all loose
stones lying on the beaten path of every highway within his dis-
trict, to be removed once in every month, from the first day of
April until the first day of December. (H. L., § 20, p. 10.)
$ 40. Fallen trees in the highway.—If a person cuts down a tree
on land not occupied by him, so that it falls into a highway, river
or stream, unless by the Order and consent of the occupant, forfeits
to such occupant the sum of one dollar for every tree so fallen
and the like sum for every day the tree remains therein. (EI. L.,
§ 102, p. 36.)
If a tree falls, or be fallen by any person from any inclosed lands
into the highway, any person, may give notice to the occupant
of the land from which the tree has fallen, to remove the same
within two days. The notice may be in the following form:
To T W.
Please take notice that a tree has fallen from your inclosed land into the
highway (state where) and you are hereby required to remove the same within
two days after the service of this notice.
Dated this. . . . . . day of. . . . . . . . . . . . . . 18. . .
L. M.
If the tree is not removed within such time, the occupant of
the land shall forfeit the sum of fifty cents for every day there-
after, until the tree is removed. (H. L., § 103, p. 36.)
§ 41. Weeds in highway. —The board of supervisors are author-
ized to make rules for the destruction of noxious weeds in high-
HIGHWAY MANUAL of NEW YORK. 239
ways, but this is a power which is not often exercised as the juris-
diction of the matter is conferred upon overseers of highways.
The owner, or the occupant under a lease for a year or more,
of any cultivated or inclosed land, abutting on a highway, must
cause all noxious weeds, briers and brush growing upon such
lands within the bounds of the highway, to be cut or destroyed
between the fifteenth day of June and the first day of July, and
between the fifteenth day of August and the first day of September
in each year, and the requisite labor therefor shall be considered
highway work. (H. L., § 70, p. 25; H. L., § 20, p. 10.) But the
board of supervisors may fix a different time for such cutting
or destruction. And no person shall place or cause to be placed,
any noxious weeds, or the seeds of such weeds, within the bounds
of a public highway. If a person or corporation fails to cut such
weeds as prescribed by law or places such seeds in the highway,
he is liable to a penalty of ten dollars for each offense, recover-
able by the commissioners of highways, in the name of the town,
for the improvement of highways. (H. L., § 70, p. 25.)
The overseer of a district shall give written notice to any occu-
pant of the premises to cut all weeds, briers and brush growing
within the bounds of the highway. The notice may be in the
following form:
To R S, Occupant of (briefly describe the premises) Abutting on the Highway
in Highway District No. ..., in the Town of... . . . . . . . . . . . . . . . , Cownty of
* g g g e º 'º º & AE is e a , N. Y.: ſ
The undersigned, overseer of highways of said district, hereby notifies and
requires you to cut all weeds, briers and brush growing upon the above
described lands within the bounds of said highway within ten days after the
receipt of this notice; and if you fail to do so, I shall cause the same to be cut
and make a report thereof pursuant to section 71 of the highway law.
Dated this . . . . . . day of . . . . . . . . . . . . . . . . 18. . .
L M,
Overseer of Highway District No. . .
If the occupant does not comply with such notice within ten
days after receiving it, the overseer shall employ some one to do the
Work and make a report to the commissioners of highways, of the
amount expended by him thereon, and the ownership and occu-
pancy of the land against which the labor was performed, on or
240 HIGHWAY MANUAL OF NEw York.
before the first day of November in each year. The report of the
overseer shall be in the following form:
To the Commissioners of Highways of the Town of . . . . . . . . . . . . . . . ..., in the
County of . . . . . . . . . . . . . . . . *
The undersigned, overseer of highway district No. . . . . . . , in Said town, in
accordance with section 71 of the highway law, hereby renders the following
report:
The amount of money expended by me for cutting weeds, briers and brush
within the bounds of the highway in said district, and the names of the owners
and occupants of the several pieces or parcels of land against which said labor
was performed, with a brief description of the same, are as follows:

Description of Amount
NAME OF OWNER. Name of occupant. premises. *
And in each case default was made by the occupant, after due notice had
been given.
Dated this . . . . . . day of . . . . . . . . . . . . . . . . 18. . . .
L M,
Overseer of Highway District No....
COUNTY OF ... . . . . . . . . . . . . . . . } SS.
TOWN OF... . . . . . . . . . . . . . . . .
LM, being duly sworn, says the foregoing report subscribed by him is true.
Subscribed and sworn to before me, }
this . . . . . day of.... . . . . . . . , 18. . .
* G H,
Justice of the Peace.
The commissioners of highways shall deliver to the supervisors
the following certificate:
To B B, Supervisor of the Town of . . . . . . . . . . . . . . . . . . . . . . . . © e º e º 'º º is e e , in the
County of . . . . . . . . . . . . . . . . . . . . . . . ;
The undersigned, commissioners of highways of said town, hereby certify
that the annexed reports have been made by the overseers of highways whose
names are thereto subscribed, pursuant to section 71 of the highway law; and
that the several amounts therein expended (if they have been paid by the com-
missioners or out of funds in the hands of the overseers from commutations
or fines so state, as the case may be).
Dated this....day of. . . . . . tº e º O © .18. . . .
A B,
C D,
E F,
Commissioners of Highways.
HIGHWAY MANUAL OF NEw York. 241
The supervisor shall lay the certificate before the board of
Supervisors at its next annual meeting, and the board shall include
the amounts in such statements in the taxes assessed upon the
lands, against which the labor was performed, to be collected
with the other taxes, and paid over on the order of the supervisor
to the persons entitled thereto. (H. L., § 71, p. 25.)
§42. Snow in highway.—Where a highway is obstructed by snow
and the assessment for highway labor of the year has been
exhausted, the overseer may make an assessment of labor for the
purpose of removing it. This subject was discussed under the
chapter on maintenance.
On the application of the commissioners of highways, the town
meeting may authorize the raising of not to exceed three hundred
dollars for the purchase of fence wire for the construction of
wire fences in substitution for the fences along the highways, in
order to prevent snow blockades in the highway. The commis-
sioners may agree with the owners of abutting land for the con-
struction of such fences and may deliver to them the necessary
wire, free of charge. The fences shall be of four strands of wire
with a substantial bar at the top, and shall be constructed under
the supervision of the commissioners of highways. The fences
shall be kept in repair by the adjoining owners. When the com-
missioners shall contract for the removal of any such fences, they
shall file in the office of the town clerk, a description of the por-
tion of the highway to which such contract applies, and there-
after, no person shall replace the fence so contracted to be removed
with any fence liable to cause the drifting of snow. (L. 1890, ch.
291, p. 80.)
31.
CHAPTER V.
Bridges.
Section 1. Liability of towns and of commissioners of highways
for damages from defects in bridges.
2. When expenses of bridges to be borne by towns and
when by counties.
3. Construction and maintenance of bridge on newly laid
out highway.
4. Rebuilding of bridge destroyed by the elements.
5. Proceedings by commissioners of highways to secure
joint action of towns of the same county in building
and maintaining bridges crossing town lines.
6. Proceedings by freeholders to secure joint action of
towns in building and maintaining bridges crossing
town lines.
7. Unsafe toll bridges.
8. Criminal liability for injuries to bridges.
Section 1. Liability of towns and of commissioners of high-
ways for damages from defects in bridges.—A town is liable for
damages caused by defects in its bridges chargeable to the neglect
of the commissioner of highways. The single exception to this
proposition is that if a bridge be broken by any load weighing over
four tons, neither the town nor the commissioner is liable for the
damages resulting therefrom whether the bridge be defective or
not. (H. L., §§ 16, 154, pp. 9, 45.)
The action for such damages may be first brought against the
town, and if a recovery be had against the town, the commis-
sioner of highways, to whose neglect the defect is chargeable, is
personally liable to the town for the amount the town has been
Highway MANUAL of NEw York. 243
compelled to pay, if the town in the action against the commis-
Sioner can establish that the defect was due to the neglect of the
commissioner. (H. L., §§ 16, 17, p. 9. See also p. 252.)
But if the commissioner of highways has not the funds available
for making such repairs, and has exercised due diligence in his
efforts to cause the necessary funds to be raised, but without suc-
Cess, then his omission to make repairs for which he has no avail-
able funds, is not neglect on his part, and neither the town nor the
Commissioner is liable for damages resulting from the omission to
make the repairs. (Bryant v. Town of Randolph, 133 N. Y., 70;
Clapper v. Town of Waterford, 131 N. Y., 382; Warren v. Clement,
24 Hun, 472, and cases cited. See also pp. 25.2-3.) º
Neither a town or commissioner of highways is liable for dam-
ages resulting from omission to construct a bridge. The liability
is only for failing to keep an existing bridge in repair, not for the
entire absence of a bridge.
§ 2. When expenses of bridges to be borne by towns and when
by counties.—There has been much special legislation with refer-
ence to particular bridges and to particular localities. This chap-
ter deals only with the general laws governing the subject, in the
absence of such special legislation.
Under the general laws of the State bridges may be divided
into three classes:
1. Bridges wholly within one town.
2. Bridges partly in one town and partly in another town, but
wholly within one county.
3. Bridges partly in one county and partly in another county.
A bridge wholly within one town, is, as a general rule, con-
structed and maintained by the town in which it is situated, at
the expense of the town. (H. L., § 130, p. 40.) The exceptions
to this general rule are:
1. If the total expense of any town on account of its bridges, in
any year, exceeds one-sixth of one per cent of the assessed valua-
tion of the taxable property of the town, the county shall pay at
least one-third of such excess, and the board of supervisors of the
county may charge upon the county a further portion of such
excess, such additional amount, however, not to exceed $2,000.
(H. L., § 130, p. 40; County Law, § 63, p. 59.)
244 HIGHWAY MANUAL OF NEW YORK,
2. The board of supervisors of the county may, in any case, if
they deem a town to be unduly burdened by the construction and
repair of its bridges, raise a county tax not exceeding $2,000, in
any one year, to aid such town in defraying the expenses of con-
structing and repairing its bridges. (County Law, § 64, p. 59.)
3. When a bridge wholly within a town is destroyed by the
elements, the board of supervisors may cause it to be rebuilt at
the expense of the county, and determine whether its subsequent
maintenance and repair shall be a town charge or a county charge.
(County Law, § 64, p. 59.)
4. The board of supervisors of a county may locate and construct
8, county bridge wholly within a town, at county expense. (County
Law, § 61, p. 58); and a bridge which is a part of a county road
must be maintained at county expense.
5. The board of supervisors of a county, may authorize a town
therein, in pursuance of a vote at regular town meeting, to partly
or wholly construct or maintain a bridge wholly in another town,
in the same or in another county. (County Law, § 67, p. 60.)
A bridge partly in one town and partly in another town in the
same county, must as a general rule, be built and maintained at
the joint expense of the towns in which it is situated, the share
of each town to be apportioned by the board of supervisors of the
county. (County Law, § 65, p. 65.) But the county may bear
a portion or all of the expense of construction and repair of such
a bridge, the same as if the bridge were wholly within one town.
(EI. L., § 130, p. 40; County Law, §§ 63, 64, 61, pp. 59, 58.)
A bridge partly in one county and partly in another county can
be constructed only in pursuance of a resolution adopted by the
board of supervisors of each county. Each county must pay at
least one-sixth of the expense of constructing and maintaining
such a bridge and the balance may be apportioned by such boards
either upon the towns in which the bridge is situated, or upon the
counties or partly upon the towns and partly upon the counties.
(H. L., § 130, p. 40; County Law, § 63, p. 59.)
§ 3. Construction and maintenance of bridge on newly-
laid out highway.—Where a highway is lawfully laid out
it is the duty of the commissioner of highways to open and work
HIGHWAY MANUAL OF NEW YORK. 245
it, and where necessary to construct bridges thereon. (Huggans
v. Riley, 125 N. Y., 88.) His first duty in such case is to see that
it has been finally determined whether the expense of such a
bridge is to be borne wholly by his own town, or by the county,
or partly by his town and partly by the county or by another town,
in pursuance of the statutory provisions referred to in the preced-
ing section. If the expense of the bridge is to be borne wholly
or partly by his town, he should use such funds as he may have
on hand available therefor, in the construction of the bridge. If
he has not sufficient funds, the necessary funds may be voted at
either an annual or special town meeting, if five hundred dollars,
or less, without previous notice, and either by viva Voce vote or
by ballot; but to raise over five hundred dollars, at either an
annual or special town meeting, previous notice must be given
and the Vote on the proposition to raise the money must be taken
by ballot. But the total amount so raised can not exceed one-
third of one per cent of the taxable property of the town. Bigh-
way Law, § 9, p. 7.) All moneys so voted to be raised must be
included in the next tax levy.
The board of supervisors of the county may authorize the town
to borrow the necessary funds, if application therefor be inade to
the board either by the town in pursuance of a vote at an annual
town meeting, or at a special meeting called for that purpose, or
by the commissioners of highways and town board. (County Law,
§§ 69, 70, pp. 61, 62.) If the amount to be borrowed exceeds five
hundred dollars, a vote, if taken thereon at town meeting, must
be by ballot.
The commissioner having the necessary funds and being thus
charged with the duty of constructing a bridge, has, unless other.
wise directed by the board of supervisors, sole charge of making
the necessary contracts and superintending its construction,
unless it be an iron or steel bridge over two hundred feet
long or having a span of Over one hundred feet, in which case the
contract must be approved by the state engineer and surveyor,
and neither the town nor the commissioner can be compelled to
accept or pay for such bridge, until the state engineer and surveyor
246 HIGHWAY MANUAL OF NEw York.
shall certify to its completion in accordance with the contract and
approve the manner and materials of its construction. (H. L.,
§ 145, p. 44.)
§ 4. Rebuilding of bridge destroyed by the elements.-.If a town
bridge be destroyed by the elements, it may be rebuilt either by
the town or by the county wholly at county expense, or partly by
the county and partly by the town. (County Law, §§ 63, 64,
p. 59, H. L., § 10, p. 243.) See § 2, ante, p. 7.
If the board of supervisors of the county refuses to contribute
funds, and the funds in the hands of the commissioners are insuffi-
cient to rebuild the bridge, the commissioners of highways may,
with the consent of the town board make the necessary contracts
for the rebuilding of the bridge although the amount thereof may
exceed the sums raised or otherwise authorized to be raised
therefor. (H. L., § 10, p. 7.)
If the bridge be rebuilt of iron or steel the state engineer and
surveyor has the same supervision thereof as specified in the Jast
section. If a town wishes to borrow money for rebuilding the
bridge it may be authorized so to do by the board of supervisors
as specified in the last section.
If the bridge be partly in one town and partly in another town
of the same or another county, the court may compel the commis-
sioners of highways to rebuild the same. (H. L., 142, p. 43.)
§ 5. Proceedings by commissioners of highways to secure joint
action of towns of the same county in building and maintaining
bridges, crossings, town lines.—No practical question over the
construction of a bridge crossing the boundary line of two or more
towns in the same county, can arise unless the towns have laid
out highways to the opposite sides of the stream to be bridged
so that the bridge will form part of a continuous highway from
one town to another. (Beckwith v. Whalen, 70 N. Y., 430.)
This presumes joint action by agreement between the several
towns as to laying out such highways. If the towns agree upon
the construction of the bridge and portion of expense to be borne
by each town, the commissioners of highways of such towns may
EIIGHwAY MANUAL OF NEw York. 24'ſ
be authorized by the votes of their respective town meetings to
construct the bridge accordingly. If either town wishes to bor-
row money therefor it may be authorized to do so by the board
of supervisors. (Co. L., § 69, p. 61.) If the towns do not agree
upon the construction of such a bridge, either of such towns may
make application to the board of supervisors of the county to
authorize and direct the construction of the bridge and to appor-
tion the expense thereof between such towns. The application
should consist of a certified copy of the proceedings of the town
meeting in relation to such bridge, and a verified petition of the
commissioners of highways or supervisor showing the inability
of the town to agree with the other town or towns as to the
construction of such bridge.
Upon such application the board of supervisors may ſix the
location of the bridge, apportion the expense thereof between
such towns, and direct the construction of the bridge. (Co. L.,
§ 62, p. 58.)
If the board of supervisors direct the construction of the bridge,
it must be constructed and maintained at the joint expense of
the towns whose boundary lines intersect the bridge, unless the
total expense of any such town in any one year for the construc-
tion and maintenance of its bridges shall exceed one-sixth of one
per cent of the assessed value of the taxable property of such town
for that year, in which case the county must pay at least one-
third of such excess, and may pay more not exceeding $2,000.
(H. L., §§ 130, 134, pp. 40, 41; Co. L., § 63, p. 59.)
Lpon such direction by the board of supervisors, it is the duty
of the commissioners of highways of such towns to construct the
bridge. If the commissioners of highways of such towns do not
agree upon the construction or maintenance of the bridge, the com-
missioners of either town may take either or both of the following
lines of action: (1) They may apply to the court to compel the
commissioners of the other towns to act under sections 136-142 of
the highway law; or (2) they may proceed to construct or repair the
bridge upon notice to the other commissioners, under sections
134-5 of the highway law.
248 HIGHway MANUAL OF NEW YORK.
\
If the latter course be taken the notice to the other commis.
sioners may be in the following form:
Notice by commissioners of highways of one town to those of another town
to join in the construction or repair of a bridge, at the joint expense of such
towns: *
To the Commissioners of highways of the town of . . . . . . . . . . . . , in the county
of. . . . . . . . . . . . , take notice that in pursuance of the proceedings of the board
of Supervisors of the county of... . . . . . . . . . . , (here briefly recite the action of
the board of supervisors with relation to the bridge), you are required to join
with the commissioners of highways of the town of . . . . . . . . . . . . , in construct-
ing (or repairing) such bridge, at the joint expense of said towns, and to serve
upon us your written consent thereto, within twenty days after service of this
notice upon you, and that in case of your failure so to do the undersigned
commissioners of highways of the town of . . . . . . . . . . ., will proceed to con-
struct (or repair) such bridge pursuant to law.
Dated this. . . . . . day of . . . . . . . . . . , 18. . . .
A B,
C D,
E F,
Commissioners of Highways of the Town of, . . . . . . . . . tº
If the commissioners served with the notice do not serve such
written consent, or unite in building or repairing the bridge
within twenty days after service of the notice, the commissioners
Serving the notice may proceed to construct or repair the bridge;
but the commissioners served with the notice must be allowed to
join in constructing or repairing the bridge if they offer so to do
at any reasonable time after the expiration of such twenty days.
If the commissioners of either town do not join with the others in
Constructing or repairing the bridge, the commissioners of high-
Ways Constructing or repairing the bridge may maintain an action
in the name of their towns, against the town of the commissioners
neglecting to join, to recover the latter's share of the joint expense.
(EI. L., §§ 134-5, p. 41.)
$6. Proceedings by freeholders to secure joint action of towns in
building and maintaining bridges crossing town lines.—If all the
commissioners of highways of the towns jointly liable for the
expense of constructing or repairing a bridge crossing a town
boundary, neglect to proceed with such construction or repair, three
freeholders of any such town may petition the commissioners to
proceed there with, and On the failure of the commissioners there-
HIGHWAY MANUAL of NEw YorF. 249
*
after to proceed, the freeholders may apply to the supreme Court
to compel action by the commissioners. (H. L., §§ 136-142,
Jp. 41-3.)
§ 7. Unsafe toll bridges.—A written complaint under oath may
be made to the commissioners of highways of a town, in which a
toll bridge is located, that such toll bridge is unsafe for public use.
(H. L., § 13, p. 8.) Such complaint may be in the following form:
Complaint that Toll-bridge is unsafe.
COUNTY OF. . . . . . . . . . . . . . . . . } SS.
TOWN OF... . . . . . . . . . . . . . . . . * tº
L M, being duly sworn says, that he believes the toll-bridge belonging to
tº º te e º 'º º ſº s º e º º e º ºs e e , situated on the (give name of stream), at (describe place),
has become and is unsafe for public use and travel; and that the reasons for
his belief are founded on the following facts:
L M.
Subscribed and sworn to before me, |
this. ...day of... . . . . . . . . 18. . .
G. H.,
Justice of the Peace.
Upon receipt of such complaint such commissioners shall imme-
diately make a careful and thorough examination of such toll
bridge, and if, upon examination, they shall be of the opinion that
the same is dangerous or unsafe for public use, they shall there-
upon give immediate notice to the owners of such bridge, or to any
agent of such owners, stating that they have, on complaint made,
carefully and thoroughly examined the bridge and found it unsafe
for public use. Such notice may be in the following form:
Notice to Owners of Toll-bridge that the Bridge is Unsafe.
To (owners or agent of the owners, acting as agent in respect to such bridge, as
the case may be):
You are hereby notified that the commissioners of highways of the town of
* * * * * * * * * > * * , in the county Of... . . . . . . . . ., have, on complaint made, carefully
and thoroughly examined the toll-bridge situated on the . . . . . . . . . . at, (describe
the situation), and found it to be unsafe for public use and travel. (State
briefly wherein it is unsafe.)
Dated this. . . . day of . . . . . . . . . . , 18. . .
A B,
C D,
E F,
Commissioners of Highways,
32
250 Highway MANUAL of New York.
Such owners shall immediately cause such repairs to be made
within one week from the day such notice was given, or on such
reasonable time thereafter as may be necessary to thoroughly place
the bridge in a safe condition. If such owners neglect to take
prompt and effective measures to repair such bridge they shall
forfeit to the town the sum of twenty-five dollars; and they shall
not demand or receive any toll for using the bridge until the same
shall be fully repaired. If not promptly repaired by the owners,
the commissioners of highways shall cause such repairs to be
made, and the owners of the bridge shall be liable for the expense
jthereof, and for the services of the commissioners while so
employed at two dollars per day; and upon the refusal or neglect
to pay the same when presented the commissioners of highways
may recover the amount by action, in the name of the town. (H.
L., § 13, p. 8.)
§ 8. Criminal liability for injuries to bridge.—A person who will.
fully or maliciously displaces, removes, injures or destroys a
public highway or bridge, or a private way laid out by authority
of law, or a bridge upon such public or private Way:
Is punishable by imprisonment for not more than two years.
(Penal Code, § 639, sub. 1, p. 87.)
CHAPTER VI.
Actions by and Against Towns and Highway Commis-
sioners Relating to the Highways.
Section 1. Liability of towns and commissioners for defective
highways and bridges.
2. What constitutes neglect of commissioners.
3. Commissioners personally liable for urespasses.
4. Actions by and against towns upon contracts made
by highway commissioners.
5. Claim for damages must be presented within six
months.
6. Actions by towns for injuries and obstructions upon
highways.
7. When judgments and expenses of actions by and
against town officers are a town charge.
Section 1. Liability of towns and commissioners for defective
highways and bridges.— Prior to 1881, the highway commissioners
were personally responsible in a civil action for any injury result-
ing from their neglect to repair town highways and bridges, pro-
vided they had funds on hand, or could with dile diligence, obtain
funds sufficient therefor, and the town was not liable. If the
highway commissioners could prove that they were not furnished
with sufficient funds to make the necessary repairs, and could not
with due diligence raise such funds, the injured party could not
I’eCOWer’.
In 1881, the law relating to actions for injuries sustained, by
reason of defective highways and bridges, was changed. During
that year the Legislature passed an act (L. 1881, ch. 700) making
the town liable for all damages to person or property, sustained
by reason of defects in town highways or bridges, chargeable to
252 HIGHWAY MANUAL OF NEw York.
the negligence of the commissioners, and the commissioners were
made personally liable over to the town. To charge the town
With liability under that act, it was necessary to prove that the
highway commissioners had been negligent in the performance
of their duties; and proof that they had not been furnished with
sufficient funds to make the necessary repairs and could not, with
due diligence, procure such funds, constituted a good defense for
the town.
By the revision of 1890, the act of 1881 was repealed, and its
substance incorporated in sections 16 and 17 of the Highway law.
Under these sections, the town continues liable, as before, for
damages to person or property, sustained by reason of any defects
in its highways or bridges, existing because of the neglect of any
commissioners of highways of such town, and the absence of the
necessary funds in the hands of the commissioners, or the inability
of the commissioners, with due diligence, to procure the necessary
funds, disproves neglect on their part, as before, and is still a
defense, both to the town and to the commissioners. (Bryant v.
Town of Randolph, 133 N.Y., 70.) The town may still recover of the
commissioners, the amount it is so compelled to pay, but must
in an action against the commissioners, prove anew the commis-
Sioners’ neglect. (EI. L., § 17, p. 12.)
It is possible, therefore, that in the action against the town,
the commissioners may be held negligent and a judgment be
rendered against the town; but, in the action by the town against
the commissioners, the commissioners may be held to have been
free from negligence, and so the town be compelled to pay, with-
out recovering from the commissioners.
The town board may audit and pay, without action first brought,
and with or without reduction by compromise, any claim for such
damages, duly presented, not barred by the statute of limitations
and not exceeding $500. But in case of such voluntary payment
by the town, there can be no recovery from the commissioners, of
the amount paid by the town. (H. L., § 18, p. 12.)
§ 2. What constitutes neglect of commissioners.—A highway or
bridge is defective when it is not in a proper condition for public
travel and it may be as much impaired for public use by an
*
HIGHw AY MANUAL OF NEw York. e 253
obstruction placed in it, as by a physical disturbance or injury
to the bed of the roadway. In either case the highway is in a
defective condition. (Whitney v. Town of Ticonderoga, 127 N.
Y., 40.
A town is not liable for an error in judgment on the part of
its highway commissioners where they were unable from want of
means to repair all of the defective places in the highways of the
town (Monk v. Town of New Utrecht, 104 N. Y., 552); but it is
no answer to the liability which the law places upon the town
for the neglect of the highway commissioner to repair dangerous
places in the highway, to say that the moneys in his hands had
been designed for payment upon ordinary contracts for work,
which, though proper, could not be deemed to be so urgently
required as the repair of a dangerous defect in the highway.
(Rhines v. Town of Royalton, 40 St. Rep., 662.) It is not necessar.
ily a defense to the liability of either the town or the commissioner
that the commissioner ordered an overseer of highways to make
the repairs (Farman v. Town of Ellington, 46 Hun, 41), or that
the defect was not known to the commissioner. His neglect to
discover the defect within a reasonable time and remedy it
may be sufficient to make the town liable. (Bordwell v. Town of
Murray, 40 Hun, 190.)
Negligence on the part of a highway commissioner may consist
as well in the omission to erect barriers in dangerous places in a
highway or bridge, as in leaving it defective. (Bryant v. Town of
Randolph, 133 N. Y., 70); and a town is liable for personal injuries
sustained by reason of the omission of its highway commissioners
to erect a railing or barrier along a highway where it passes at a
dangerous elevation. (Maxim v. Town of Champion, 50 Hun, 8S);
but where a roadway has been constructed through a town at ºn
elevation above the level of the adjacent land, which is safe and
of sufficient width, the town will not be liable for an omission
to erect a railing or fence along the exterior of such road, to a
person who has sustained injuries by falling down the embank-
ment. (Monk v. Town of New Utrecht, 104 N. Y., 562.) The lia-
bility will depend largely upon the circumstances of each case,
and if there is any doubt as to their necessity, barriers should be
erected.
254 HIGHwAY MANUAL OF NEW YORK.
Where an obstacle was left on a highway in a position danger-
ous to public travel and the highway commissioner knew of its
position, the town was held liable in damages for the injuries sus-
tained by a person traveling over such highway. (Whitney V.
Town of Ticonderoga, 127 N. Y., 40.) A town is not liable for negli-
gence by reason of a horse shying in consequence of Ordinary
stones, lying by the roadside outside of the travelers' path, for
the purpose of erecting a stone wall and with nothing Strange
or peculiar in their appearance. (McCord W. Town of Ossining,
10 St. Rep., 407.)
Bighway commissioners are not bound in grading a highway
to provide a channel for the drainage of surface water, and the
town is not liable for injuries resulting from their omission to do
so. (Acker v. Town of New Castle, 48 Hun, 3.12.) But if by such
grading, surface water is collected and discharged at a different
place from its natural course, if any, the town will be liable for
damages therefrom. (Moran v. McClearns, 63 Barb., 185.) Where
a railroad crosses a highway, the duty imposed by law upon such
railroad corporation to restore the highway to its former state or
to such condition as not unnecessarily to impair its usefulness,
does not relieve the highway commissioners from the care and con-
trol of the approaches to such crossings. The original highway
when its route is not changed remains a public highway as before.
§ 3. Highway commissioners personally liable fortrespasses.—
The town is not liable where the commissioner commits a trespass
causing injury to persons traveling along the highway. For his
trespasses the commissioner is personally liable as any other
individual would be. The town is liable only for defects in high-
ways and bridges due to his neglect, but not for his trespasses.
§ 4. Actions by and against towns upon contracts made by
highway commissioner.— Section nineteen hundred and twenty.
seven of the code of civil procedure authorizing an action or
special proceeding against a highway commissioner upon con-
tracts lawfully made with him or his predecessor in his official
capacity, must be deemed to be superseded by section one hun-
dred and eighty-two of the town law and by the statutory provi-
HIGHwAY MANUAL OF NEw York. 255
sions declaring a town to be a municipal corporation. (Town
Law, §§ 2, 182; General Municipal Law, § 1; General Corporation
Law, § 3.
Such contracts, with a highway commissioner, when author-
ized by law, will be deemed the contract of the town, and the
town and not the officer is the proper party to an action thereon.
Where such commissioners have exceeded their authority in
entering into the contract, or in incurring the liability, such
contracts or liabilities are not obligatory upon the town, and the
commissioners themselves are personally liable.
Neither a town nor a highway commissioner, has general
authority, to borrow money or to give promissory notes and if he
does so, without authority of law, he can not bind the town.
(Van Alstyne v. Freday, 41 N. Y., 174; Wells v. Town of Salin
119 N. Y., 280) *
§ 5. Claim for damages must be presented within six months.-
No action to recover damages from defective highways or bridges
can be maintained against any town unless a verified statement
of the cause of action has been presented to the supervisor of
the town within six months after the cause of action accrued.
No such action can be commenced until fifteen days after the ser-
vice of such statement. (H. L., § 16, p. 12.)
The verified statement may be in the following form:
To R S, Supervisor of the Town of... . . . . . . . , in the County of..........:
I claim a cause of action against the said town of... . . . . . . . . . . . . , by reason of
defects in the highway (or bridge) in said town, and the following is a state-
ment of such cause of action:
(Here state cause of action as in a complaint in an action.)
Dated this....day of. . . . . . . . . . , 18. . .
L M.
STATE OF NEW YORK,
COUNTY OF. . . . . . . . . . .
tº e º e g º º º , being duly sworn, deposes and says: I am the above named claimant.
I have read the foregoing statement of claim and know the contents thereof.
The same is true to my own knowledge, except as to the matters therein stated
to be alleged upon information and belief, and as to those matters I believe the
same to be true.
Sworn to beforeme, this.... }
}ss.
256 HIGHWAY MANUAL of NEw York.
§ 6. Actions by towns for injuries and obstructions upon
highways.- The highway commissioners may bring an action in
the name of the town against any person or corporation to sus-
tain the rights of the public in and to any highway in the town,
and to enforce the performance of any duty enjoined upon any
person or corporation in relation to any such highway, and to
recover any damages sustained or suffered or expenses incurred
by such town, in consequence of any act or omission of any such
person or corporation, in violation of any law or contract in
relation to such highway. (H. L., § 15, p. 12.)
The town may maintain an action against any person who
intentionally or by negligence causes injury to a highway or
bridge, which the town is required to repair and keep in order.
In such an action the town may recover the necessary expenses
incurred in repairing or rebuilding such highway or bridge.
(Bridelman v. State, 110 N. Y., 232.)
An action may be brought in the name of the town, by the
highway commissioners in any court of competent jurisdiction
against the owner or occupant of lands adjoining that part of
the highway in which any obstruction or encroachment exists, to
compel the removal thereof, if he has failed within the time
specified in a notice duly given to remove the same. (H. L., § 105.)
This is a new provision in the highway law of eighteen hundred
and ninety, and changes the law, the courts having previously
held that an equitable action for such purpose could not be main-
tained, but that the summary remedy under the previous statutes
was exclusive.
The same section provides that the commissioner may himself
remove the obstruction or encroachment and recover the expenses
thereof, and may recover penalties therefor.
§ 7. When judgments and expenses of actions against town
officers are a town charge.—The costs and expenses, lawfully
incurred by any town officer in prosecuting or defending any
action or proceeding brought by or against the town or such
officer, for an official act done, shall be a town charge in all cases
where the officer is required by law to so prosecute or defend, or
HIGHw AY MANUAL of NEw YoFK. 257
to do such act, or is instructed to so prosecute or defend or do
such act, by resolution duly adopted by the town board, or at a
town meeting duly held.
All damages recovered against a town officer for any act done
pursuant to a direction or resolution, duly adopted by the town
board, or at a town meeting duly held; and all damages against
any such officer for any act done in good faith, in his official
capacity, without any such direction or resolution, may be made
a town charge by a vote of the town, at a town meeting duly
held. (Town L., § 180.)
33
P A R T III.
PRACTICAL SUGGESTIONS
ON
Highway Construction and Maintenance.
[THE PLATES AND DIAGRAMs Contain ED IN THIS PART were
RINDLY FuRNISHED BY THE EDITOR of “Good RoADs.”]
C H A P T E R I.
Sketches of Ancient and Modern R0ads; EXtract
from Governor F10wer's MeSSage.
It may well be said that the condition of the highways in any
country forms a true index to its civilization. Savages have
... no highways, they follow trails through forest and fen. Marked
"trees and mule paths point out the way to the semi-barbarian.
The wild Arab follows the footprints of the camel left in the sands
of the great desert.
Advancing civilization brings improvement in highways. The
ancient Carthagenians built roads for the transportation of
troops and military supplies, but well defined roads did not exist
until the golden age of the Roman Empire. In no one thing does
Roman civilization appear to a greater advantage than in the
durable, massive structure of her highways. The most import-
ant of these roads was the Appian way — via appia, which
extended from Rome to Brundisium, a distance of 350 miles.
It was constructed by digging two parallel trenches, two
or three feet in depth, at the bottom of which were placed two lay-
ers of flat stones in mortar, upon which a layer of cobblestones
were placed, also laid in mortar, then came a course of pebbles
or concrete, over this were placed large flat blocks of smooth
lava well joined together, forming an even, uniform surface, and
although 2,000 years have passed since its construction, yet ruins
of its splendid viaducts are still extant. Traces of these old
Roman highways are still found in England and other parts of
Europe. The fall of the Empire brought an end to the construc-
tion of roads. During the mediaeval age the highways of Jºurope
were unimproved and neglected and became practically useless.
262 HIGHWAY MANUAL OF NEW YORK.
Macauley says, that in the fifteenth century the royal coaches
in sight of London were often stuck fast in the mud. But with
the revival of art and literature some attention again began
to be paid to highway construction and improvement. In the
sixteenth century a law was passed in England, providing for the
appointment of two surveyors or commissioners of highways for
each parish. They were given the authority to compel the
people of their district to work upon the highways. This was the
origin of our present system of road working.
The first modern scientific plan of road construction was
devised by Thomas Telford, a Scotch engineer who lived about the
middle of the eighteenth century. His method of construction
was to dig a trench from thirteen to eighteen feet in width and
from twelve to eighteen inches deep. At the bottom was laid in
cement or pitch a layer of flat stones, above this were two layers- Q
of pebbles. On each side of the trench flat stones were set on edge
rising to the surface of the road which acted as curbstones to
keep the whole mass in position. Telford supervised the con-
struction of a road according to this plan, extending from London
to the north of England and into Scotland, a distance of nearly
1,000 miles. This road is even now pointed to with pride by
all Englishmen.
The Macadam road superseded the Telford. John Loudon Mac-
adam, the inventor, was also a Scotchman and died as late as
1836. He repudiated the Telford theory, that the road needed
a stone foundation, and maintained that the soil itself, if properly
drained, formed a sufficient support for the heaviest loads. He
drained the road-bed thoroughly and covered it with a surface,
not less than seven inches in thickness, of small broken stone,
not to exceed the size of a walnut. Macadam was the first to
discover that stone broken into small segments would concen-
trate into a solid mass under pressure and form a durable surface.
The popularity of this road soon became widespread. Over 20,000
miles of it were built in England in less than ten years. The
Macadam road is much cheaper than the Telford.
It is generally conceded that the stone road on the Macadam
plan, that is, a well-drained bed, covered with small, uniformly
broken stone to the depth of from six to eight inches, well pressed
Famous Roads of History.—The Appian VVay, Rome,

HIGHWAY MANUAL OF NEw York. 263
with heavy rollers, is the best and cheapest road that can be
built. The French boulevards are mainly constructed according
to this plan. Thousands of miles of this road have been built in
the United States. The famous roads of Staten Island are built
upon the Macadam plan. It is evident that the time is rapidly
approaching when this system of road-making will become
universal.
In the early days of our country, turnpike roads were built at
government expense, extending from one fort or strategic point to
another, often through dense forests. They were built by the
soldiers of the Revolutionary war and of the war of 1812, and were
necessary for the transportation of our armies and military supplies.
They often preceded the early settlers of the frontier and were of
great value to the development of our country's resources. The
statesmen in the early history of the republic urged the construc-
tion of national highways. Henry Clay once said: “The States
should be joined together by a cordon of national highways;” but
the subsequent development of railroads has rendered these
national highways unnecessary as military roads, or for the inter-
state transportation of agricultural products.
These turnpikes or “corduroy roads,” as they were called, were
constructed as follows: A space four rods in width was cleared in
the forests, in which a width from sixteen to eighteen feet was
graded and leveled and then logs were laid down transversely and
close together, which were covered with gravel. The logs acted
as a drain and the road-bed, even extending through swamps, was
kept dry and always passable.
These corduroy roads were succeeded by the plank roads, which
were built by corporations authorized by legislative enactment to
charge the users a toll for the maintenance of the highway and for
the individual profit of the owners of the franchise. They were
not public highways in a true sense of the term, for they were not
free to all, as all roads should be. The corporate franchise carried
with it an absolute monopoly which allowed the corporators to
levy tribute upon the traveling public.
The plank road was constructed by placing two or more timbers
in the road-bed longitudinally, sunk into the ground to a level
264 HIGHWAY MANUAL OF NEW YORK.
with the surface, and then covered with plank two or more inches
in thickness. This at first formed an excellent road, but soon
decayed, and was far inferior in cheapness and durability to the
old corduroy road.
The plank road has now become practically obsolete, and it is
hoped so has the toll-gate. With the expiration of the existing
charters of turnpike corporations, in time will go this monop-
oly of our highways. Whatever monopolies or trusts may be
formed in the future, our public roads should be left untouched
by the all-inspiring greed of gain, unrestrainably free as the air
we breathe and the water we drink.
Road improvement is now a question of great interest and
importance. Continued and well-directed agitation has brought
to the attention of every one, the great need of a change in the
condition of our highways. Our highways have always been as
bad as now, but it has only been recently that any real effort has
been made toward improvement.
The League of American Wheelman are in the lead of all
agitators and are doing a great service in thoroughly arousing
the people as to the importance of good roads. The wheelmen
are a particularly energetic body of men, the true knights of our
highways. They propose no laws; they seek to impose no tax
upon the people; their motto is “Agitation,” believing that agi-
tation leads to thought, and thought to ultimate action. Their
magazine “Good Roads,” devoted to road improvement, ably
edited by Isaac B. Potter, and published in the city of New York,
with a monthly circulation of over 70,000, is doing a great work
in preparing the public mind for this needed reform.
Road improvement associations are being organized in all
parts of the country. Literature and tracts discussing this great
question, are being scattered by them broadcast throughout the
land. The public mind is thus being educated, and eventually,
this agitation will result in great improvement in our method
of highway construction and maintenance.
Governor Flower is keenly alive to the necessity of road
improvement. He devoted a prominent part of ilis message to
the Legislature of 1893 to this subject.
HIGHWAY MANUAL of NEw YoFK. 265
We quote as follows from Governor Flower's message:
“The subject of good roads is exciting a remarkable interest
throughout the country. Py popular agitation and through the
newspapers the movement is beginning to tind expression in
State legislation, and if it goes on with its present momentum
will revolutionize conditions now prevailing in nearly all rural
localities.
“While having no sympathy whatever with that phase of this
movement which seeks the establishment of a national bureau
of roads and the consequent building of national roads through
the country, I am thoroughly convinced that the prosperity of our
own State, and especially the interests of its agricultural sections,
demand prompt and effective efforts to improve the condition
of our highways. It has long been admitted generally that our
present system of highway improvement is indefensible, either
from the point of view of economy or from the point of view of
efficiency. Yet annual spasmodic efforts have been made here
and there to establish permanent and durable roads, or even to
change the antiquated method which has so long prevailed. As
is well known the principal feature of our highway legislation
and practice is what is comprehended by the so-called “working "
system, and with a view of getting at reliable statistics as to the
actual cost at present of highway maintenance and construction
under this system, I have sent communications to the town clerks
in the State, requesting them to furnish me with figures which
would be of use in Such a computation. I have received replies
from only about a third of the towns. Yet the figures received
aftord a reasonable opportunity of computing with nuore or less
degree of accuracy the approximate cost in each county. I have
endeavored chiefly to ascertain the total number of days’ work
performed in a year on the highways of each county, and also
the total cash expenditures for highway improvement in each
county for one year. The following table presents the results of
my computation. In estimating the total money cost in each
county I have added to the cash expenditures the number of days'
work performed as valued at One dollar for each day. The figures
34
266 HIGHWAY MANUAL OF NEw York.
do not in any case include the cost of road improvement in cities
and villages. The table is as follows:
No. days'
COUNTIES. "...º. expºre. amºost.
Albany . . . . . . . . . . . . . . . . . 43,704 $15,831 $59,535
Allegany . . . . . . . . . . . . . . . . 48,070 33,996 82,066
Broome . . . . . . . . . . . . . . . . . 31,876 15,780 47,656
Cattaraugus ... . . . . . . . . . . . 65,109 28,347 93.456
Cayuga . . . . . . . . . . . . . . . . . 29,127 10,455 39,582
Chautauqua . . . . . . . . . . . . . 36,475 30,925 67,400
Chemung . . . . . . . . . . . . . . . 25,608 15,037 40,645
Chenango . . . . . . . . . . . . . . . 28,749 34,681 63,430
Clinton . . . . . . . . . . . . . . . . . 23,968 18,402 42,370
Columbia . . . . . . . . . . . . . . . 30,842 21,056 51,898
Cortland . . . . . . . . . . . . . . . . 18,060 6,060 24,120
Delaware . . . . . . . . . . . . . . . 32,623 1,800 34,423
Dutchess . . . . . . . . . . . . . . . 23,280 35,340 58,620
Erie . . . . . . . . . . . . . . . . . . . . 77,448 22,882 100,330
Essex . . . . . . . . . . . . . . . . . . . 43,074 9,936 53,010
Franklin . . . . . . . . . . . . . . . . 41,496 18,691 60,187
Fulton . . . . . . . . . . . . . . . . . . 16,960 8,230 25,190
Hamilton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Genesee . . . . . . . . . . . . . . . . . 33,278 19,512 52,790
Greene . . . . . . . . . . . . . . . . . 14,014 5,712 19,726
Herkimer . . . . . . . . . . . . . . . 28,785 6,650 35,435
Jefferson . . . . . . . . . . . . . . . 55,968 33,792 89,760
Kings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lewis . . . . . . . . . . . . . . . . . . . 20,178 14,076 34,254
Livingston . . . . . . . . . . . . . . 28,883 14,365 43,248
Madison . . . . . . . . . . . . . . . . . 44,884 10,724 55,608
Monroe . . . . . . . . . . . . . . . . . 42,284 25,850 88,134
Montgomery . . . . . . . . . . . . . 32,390 15,000 47,390
New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Niagara . . . . . . . . . . . . . . . . 28,548 13,236 41,784
Oneida ... . . . . . . . . . . . . . . . . 42,432 30,522 72,954
Onondaga . . . . . . . . . . . . . . . 52,060 16,359 68,419
Ontario ... . . . . . . . . . . . . . . . 43,136 29,248 72,384
HIGHWAY MANUAL OF NEW YORK. 267
No. days'
COUNTIES. wº. expºre anºot.
Orange . . . . . . . . . . . . . . . . . 48.256 $24,890 $73,146
Orleans ... . . . . . . . . . . . . . . . 17,640 12,000 29,640
Oswego ... . . . . . . . . . . . . . . . 47,250 10,962 58,212
Otsego . . . . . . . . . . . . . . . . . . 45,400 18,540 63,940
Putnam . . . . . . . . . . . . . . . . . 14,760 3,555 18,315
Queens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rensselaer . . . . . . . . . . . . . . 31,840 19,120 50,960
Richmond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rockland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
St. Lawrence . . . . . . . . . . . . 68,203 20,832 89,035
Saratoga. . . . . . . . . . . . . . . . . 30,280 14,172 44,452
Schenectady . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Schoharie . . . . . . . . . . . . . . . 25,484 10,490 35,974
Schuyler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . *
Seneca . . . . . . . . . . . . . . . . . 12,661 6,140 18,801
Steuben . . . . . . . . . . . . . . . . 64,704 40,000 104,704
Suffolk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sullivan . . . . . . . . . . . . . . . . . 31,272 4,854 36,126
Tioga . . . . . . . . . . . . . . . . . . . 25,182 10,000 35,182
Tompkins . . . . . . . . . . . . . . . 21,720 8,000 29,720
Ulster . . . . . . . . . . . . . . . . . . 55,560 61,126 116,686
Warren . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Washington . . . . . . . . . . . . . 28,764 7,276 36,040
Wayne . . . . . . . . . . . . . . . . . 40,746 9,790 50,536
Westchester . . . . . . . . . . . . . 10,910 74,407 85.317
Wyoming . . . . . . . . . . . . . . . 31,568 9,744 41,312
Yates . . . . . . . . . . . . . . . . . . 20,805 11,454 32,259
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,715,761
“Where insufficient returns upon which to base an average have
been received from any county no estimate is made for that
county.
“It will be observed from this table that fifty counties in the
State are now paying annually in labor and cash about $2,700,000
upon their highways. This is an average of about $54,000 for
268 HIGHw AY MANUAL OF NEW York.
each county. I venture the assertion, which I think will be gener-
ally corroborated by those who have seen the methods of work
now employed on country roads, that a large proportion of this
expenditure is practically wasted. With no greater expenditure,
but under a different system, each county might be covered
with fine macadam roads with all the resulting advantages
in appreciation of property and in economy of transportation.
It is difficult to estimate the average cost of macadam roads
in our State because of the varying conditions in lifferent locali-
ties; but a reasonably conservative estimate by engineers is
$7,000 a mile as the cost of first construction, with an annual cost
for maintenance and repairs of about $300 a mile. If this esti-
mate is correct, the present average cost of highway improvement
each year in the counties of the State, reducing the labor per-
formed to a cash valuation, would pay the interest and provide
for the sinking fund on a sufficient issue of bonds to construct
150 miles of road in each county — viz.: The cost of 150 miles of
macadam road at $7,000 a mile would be $1,050,000, the interest
on which would be $42,000 per annum at four per cent, leaving
$12,000 a year to be applied to a sinking fund. From the table
given above, with an accurate knowledge of the cost of con-
struction of macadam road in their locality, the citizens of each
county can ascertain more precisely how many miles of good
highway may be built in their locality without any greater outlay
of money and labor than is required by the present system with
its wretched results. Of course a good gravel road would cost
much less than a macadam road — probably not to exceed $3,500
per mile on the average.
“Between the two extremes of extravagance in State expendi-
tures and stinginess in local expenditures for local improvements,
the country-road system is suggested as the golden mean. At
least the leading market roads in each county should be main-
tained by county taxation, expended under the supervision of a
competent county engineer, subject to the general direction of
the board of supervisors.
“It is suggested that the Legislature should pass a general law
prescribing certain kinds of improved roads, outlining the
HIGHwAY MANUAL of NEw York. 269
methods of raising and expending the necessary moneys, and
authorizing any county upon the vote of the board of supervisors
to avail themselves of the provisions of the statute.
“It seems needless at this stage of the movement toward better
roads to point out the material advantages of improved means of
communication over country highways. Not only will good sub-
stantial roads improve the value of every acre of land in their
vicinity, but they are of direct pecuniary advantage in saving
expense of transportation, and in bringing the farmer into closer
and therefore often more profitable communication with the towns.
Careful estimates have shown that an ordinary horse will draw
on macadam roads over three times the load he can draw on a
dirt road. This saving of transportation in itself would amply
compensate every locality for whatever extra burdens of taxa-
tion, if any, the construction of macadam roads would impose.”
Pursuant to Governor Flower's suggestions, the county road
bill was introduced and became a law (L. 1893, chap. 333.). By
this act the board of supervisors of a county may adopt
the county road system, designating leading market roads as
county roads, and appoint a county engineer who shall, with the
board of supervisors, have exclusive jurisdiction of such roads.
This law is certainly a move in the right direction and must
eventuate in material improvement to our highway system. The
designating of particular highways to be maintained at county
expense, by the supervisors, gives to it a savor of home rule,
and is greatly preferable to any of the proposed systems of State
roads arbitrarily laid out by State commissioners, independent of
the wishes of the people. Railroads are constructed conveniently
connecting populous centers and furnishing ample and cheap
means for the transportation of produce. The State road connect-
ing the same points constructed at an enormous expense would
make elegant speedways and beautiful drives, but their practical
value for transportation purposes would be entirely out of pro-
portion with the actual cost of construction. The people demand
a plan that shall improve the common roads on which they live,
the roads that extend from the farm to the market, the many
cross roads of the State. The plan, suggested by the Governor,
270 EIIGHwa Y MANUAL OF NEW YORK.
of county roads designated by the supervisors, essentially the
people's representatives, under their supervision and that of a
county engineer appointed and removable by them, is practical,
and will result in the improvement of such roads, as the taxpaying
community desires improved. The following is an extract from
an article written by Governor Flower for “Good Roads.” (Feb-
ruary number, 1893.)
“In the discussion of the subject of good roads, four plans of
improvement have been suggested:
“1. National roads — laid out through States and territories
at national expense and under supervision of a national govern-
mental bureau.
“2. State roads — laid out through the counties of a State at
State expense and under State supervision.
“3. County roads — laid out in each county, connecting the vari-
ous towns in the county, built at county expense and under the
supervision of the board of supervisors.
“4. Town roads — laid out through each town at town expense
and under the supervision of town authorities.
“To the first plan, I am unalterably opposed. I can see no
reason why the general government should undertake such a
work. In these days of improved railroad and water communica-
tion, national highways can serve no purely national purpose.
They are needed neither for interstate commerce, or for trans-
portation of troops and military supplies. They could be built
now on any comprehensive scale only under the broadest con-
struction of the general welfare clause of the constitution.
“To the second plan I am also opposed. I do not think, in the
first place, that it is a feasible method, for it would not commend
itself sufficiently to public confidence. However honest the
impulse behind it, and however economically such a policy was
carried out, it would always be criticised as a political scheme,
designed to serve the purposes of the party in power. The failure
of the so-called Richardson bill in the New York Legislature
during the past three years is a sufficient indication of the popu-
lar temper on this method. In practice the plan of a system of
HIGHwAY MANUAL OF NEW YORK. 271
State roads would probably lead to extravagance in cost and
favoritism in the location of the public highways.
“Between the two extremes of extravagance in State expendi-
tures and stinginess in local expenditures, I suggested the county
road system as the golden mean. * * * Such legislation
should be permissive, not mandatory. While it is to the inter-
ests of the State that the highways of each county should be
in good condition, the movement for improvement should originate
with the people of the county upon whom the cost must fall and
who share the largest measure of advantage. Whether the vari-
ous counties will avail themselves of this general statute is, of
course, an open question. I have confidence that they would.
But any substantial reform requires agitation. * * * *.
“As citizens of the richest and most powerful State in the
union, we can not afford to be backward in this national move-
ment for better roads. We have more at stake in this regard
than most States. We have a beautiful and picturesque rural
territory which attracts hundreds of thousands of visitors from
other States every summer, and whose value and attractiveness
might be immeasurably enhanced by an earnest and intelligent
effort to improve its highways. We have thousands of square
miles of agricultural lands which would be vastly increased in
value by better means of highway communication. We have
250,000 farmers in the State whose crops must be transported by
horse-power from the farms to the markets; who will estimate
the additional cost to these 250,000 by the wear and tear of
wagons and horses which bad roads impose?
“These material advantages have but to be pressed home to
our farmers and to our taxpayers and soon there will disappear
any vestige of opposition to road reform.”
The Governor asserts in his message that the highway tax
as now assessed amounts to at least $3,000,000 annually, not
including the cities and incorporated villages. The intelligent
expenditure of this great sum of money under the skilled super-
vision of competent engineers would soon bring about the desired
road improvement, and this too without the expense of State aid.
272 HIGHway MANUAL OF NEw York.
The enforcement of the present law, the wise and economical
expenditure of money and labor, and the intelligent performance
of duty by our highway officers will effectually improve the eon-
dition of the highways. Careless and inefficient service, by the
overseer of highways or pathmaster, with lack of supervision by
the commissioners of highways has done much to make our
roads what they are. Our road districts are small, averaging but
little over two miles. If each pathmaster would build in his
district a few rods of stone road on the macadam plan each year
the roads of our State would soon present a more favorable appear-
ance. There are numerous appliances for road improvement
which, properly used, will accomplish much. Among these are the
road-scraper, portable pile-driver, stone crusher, heavy roller,
wide tire and hand-drill, all potent factors in this needful reform.
To instruct the highway officers as to their duties, to furnish
them with practical suggestions as to road construction and to
show them the value of road improvement, the Legislature enacted
the law providing for the publication of this manual. It is earn-
estly hoped that with knowledge of their powers will come
enforcement of the law by these officers, and with suggestions as
to road construction and maintenance will come the much needed
reform of our highways.
Contrast.

Contrast,

C H A P T E R II.
ROAD CONSTRUCTION.
In English law a road or highway is defined as any place Where
the public are free to ride, drive or walk.
Location of Country Roads.
Country roads may be classified in respect to their location as
main and cross or by-roads. The considerations governing the
location of country roads are dependent upon the commercial con-
ditions of the country to be traversed. In old and long inhabited
sections the controlling element will be the character of the traffic
to be accommodated. In such a section the route is generally pre-
determined and therefore there is less liberty of a selection than
in a new and sparsely settled district, where the object is to estab-
lish the easiest, shortest and most economical line of inter-
communication, according to the physical character of the ground.
Main roads should be straight when practicable, the distance is
thus shortened. This was true of all Roman roads. Obstructions
formed no barriers. Rivers were bridged, mountains tunneled,
valleys raised and hills leveled. With Rome as a centre these
roads formed radii running in straight lines to the extremity of the
empire; hence the old saying, “All roads lead to Rome.” Economy
of construction and maintenance was in these roads disregarded
to obtain the least possible expenditure of motive power. A
straight, undeviating line was almost a Roman passion, this may
have been carried to an excess, but, on the other hand, the hap-
hazard, zig-zag paths of our fathers is the other extreme. Direct-
ness should, however, be sacrificed to secure easy grades and to
avoid expensive construction.
35
274 HIGHWAY MANUAL OF NEW YORK.
In Our State the location of the most of our main roads is
already established. In many instances little regard was paid to
directness or grades. In attempting to alter the location of these
roads, a local prejudice against reform and the necessity of
additional heavy expense of construction must be contended with,
but in many cases the condition of things may be remedied by
slight and inexpensive alterations. These should be made wherever
possible. In the location of all new roads, routes affording the
easiest grades should be followed; points should be connected by
the shortest and most direct line, commensurate with easy grades;
all unnecessary ascents and descents should be avoided; all
streams should be bridged as nearly as possible at right angles;
ridges should be crossed through the lowest pass which occurs; all
railroads should be crossed either over or under, for grade crossings
mean danger to every user of the highway. Cattle instinctively
seek a level grade, observing this fact Fremont, when surveying a
line for the Southern Pacific R. R., followed the trail of the buffalo,
which led him to the lowest pass of the Rockies, which in grade
surpassed the skill of the engineer and procured for him the
imperishable name of “Pathfinder.” The determination of
Grades
is therefore important in the location of roads. It is better to go
around a hill than to go over it, the distance may be no greater
and a steep ascent and descent can be avoided. The bale of a
kettle is no longer when lying down than when standing upright.
In the establishment of grades there is always a maximum to be
avoided and a minimum sought to be approached. A dead level is
never desirable, it renders good drainage impossible.
Many things may enter to determine the maximum grade to be
established. It will depend upon the character of the land, the
Quantity of the traffic, whether heavy or light, and upon the cost of
construction. It would be impracticable to edopt any fixed
maximum gradient, applicable to all situations. A road should
however, never contain an incline of more than one foot in fifteen
and this only for short distances and, in such cases, halting places
should be provided every 200 feet. But a grade of this steep-
HIGHwa Y MANUAL OF NEw York. 275
ness should never be allowed in a main road traveled by heavy
loads. In the ascent of a short pitch, it may be estimated that
a horse will exert for a short distance, twice the energy exerted
On a comparatively level road; this may be called his rescrve
strength. It is nature's plan to overcome obstacles. A good-
sized load may be drawn up a slope one foot in twenty, for a dis-
tance of 400 feet, no steeper slope than this should ever be
allowed. The maximum grade adopted by the French engineers
in the construction of macadamized roads is one in twenty; the
maximum adopted by Telford was one in thirty. It is a remark-
able fact that the steepest grade in the roads crossing the Alps
does not exceed a rise of one in thirteen.
Sir John McNeil asserts that if a road is graded to one in
twenty, the cost of maintenance is twenty per cent greater than
when the grade is one in forty. Steep grades injure horses and
increase the wear upon the wagons, they also lessen the size of
the loads which can be hauled. We make the following state-
ment, showing the difference in the weight of a load that can be
drawn upon a level and upon the different grades: We will sup-
pose a team able to move 3,000 pounds, or a ton and a half of
freight without difficulty on a level road, on a rise of one foot in
fifty it will require one-fifth more power to move the load, or the
same power can only move 2,400 pounds; if the grade be one in
twenty-five, the same motive power could move but 1,000 pounds
and on a slope of one foot in ten, but 500 pounds could be moved
with the same motive power.
Breaks.
All hill-side roads should be well protected with water breaks,
or “thank-you-mams” as they are called. If such a road is kept
well rounded in the center, with frequent breaks, well defined,
the wash of the road is preserved. These open breaks should never
be placed diagonally across the road, such breaks w "ench the
load, and prove very damaging to wagons. They should be made
in the form of a V, the point of the V being in the center of the
road, and extending up the hill, the water is thus turned both
ways.
On hill-side roads there should be frequent outlets from the
ditches on each side of the roadbed down the banks, Gtherwise the
276 HIGHWAY MANUAL of NEw York.
accumulation of water in the ditches will wash away the road.
When the road is long, and it is necessary to transfer the water
to the lower side, the open ditch should be turned into a
diagonal sluice of tile or plank well sunk into the ground, and
if tile, sunk deep enough so that it will not crumble under the
Weight of the load, and of sufficient capacity to allow the heaviest
storms free escape. *
Width of Road.
All roads should be wide enough to accommodate the traffic for
Which they are intended. Main roads should be at least three
rods Wide between the fences, and the space between the ditches
should be from eighteen to twenty feet. For cross or by-roads
the Space between the fences may be two rods and the roadway or
space between ditches should not be less than fourteen feet, except
that perhaps on roads little traveled twelve feet would answer.
Wide roads are preferable in that they expose a larger surface
to the drying action of the Sun and wind and would not therefore
require as much care and supervision as the narrower ones. But
the first cost of construction and the expense of maintaining a
proper convexity in such roads is much greater. We would there-
fore recommend as narrow a road as possible for the amount of
traffic to be accommodated.
Convexity.
The center of all roadways should be higher than the sides.
The object of this is to facilitate the flow of surface water to the
ditches. How much higher the center of the road should be
than the sides is a question that can be determined by the chair-
acter of the material used in the construction of the road. Exces-
sive height of the center of convexity would result in the narrow-
ing of the width of the wheelway, as the traffic would be con-
centrated in the middle of the road, that being the only part
where a wagon could run upright. Thus the continued tread of
the horses feet in one track would soon form depressions which
would hold water, and the continuous travel of wagons in the
same track would soon wear ruts. All parts of the roadway
should be equally accessible to travel and this object is defeated
by too great a height of convexity. We will mention later the
HIGHWAY MANUAL of NEw York. 277
proper convexity of the different kinds of roads. But in all
cases the proper convexity should be obtained by rounding the
surface and not by diminishing the covering at the sides.
Drainage and Culverts.
No part of road building needs more skill and the exercise of
more good “horse’’ sense than the construction of the drain.
Were we asked what was the first requisite in the formation and
Imaintenance of a good road, our answer would be “good drain-
age.” There are two kinds of drainage, surface and sub-surface.
Under ordinary circumstances, with a suitable soil, the surface
or side drain or ditch on each side of the roadway is sufficient.
These should be made of a size large enough to carry off the
waters of the heaviest storms, with culverts conveniently arranged
for conveying under the road the surface water collected in the
side ditches from the upper side to that side on which the water
courses lie. There is one general defect in ditches and culverts,
they are usually formed with capacity for the common storm, with
no regard whatever to the unusually great one that comes only
once or twice in a mam’s lifetime. Our bridges, ditches and cul-
verts are all inadequate to meet the demands of these great
floods. Great damage is then done, making necessary the pay-
ment of large sums for repairs and reconstruction. In a recent
storm or cloud-burst in the town of Schodack, Rensselaer county,
nearly every culvert and small and large bridge was swept away,
at a total cost to the town of nearly $30,000. Had they been
constructed with twice the capacity, not a culvert or bridge
would have been destroyed, and the cost of doubling the size
would have increased the original cost of construction compara-
tively little. At the same time a stone culvert on the Boston and
Albany railroad was swept away, which had stood all previous
storms for more than forty years, the repairing of which cost
the company over $100,000; sufficient capacity would have pre-
vented the damage thus done by this storm.
A road bottom, the bed of which is wet or springy, should have
a perfect sub-soil drainage. A wet, undrained bottom will be
destroyed by both water and frost and will always be trouble-
some and expensive to maintain. Sub-Soil drains may be built
278 HIGHWAY MANUAL of NEw YorF.
of tile made from terra-cotta or burnt clay. These tile are porous
and are far superior to all other kinds of drains. They carry off
the water with greater ease, rarely, if ever, become clogged and
Only require a slight inclination to keep the water moving through
them. Round tile is superior to all other forms. These tile
should be laid in one or more rows, longitudinally in the center
of the road, and discharged into cross-drains with proper outlets
placed from 250 to 350 feet apart, according to the lay of the
land. A large blind ditch running longitudinally in the middle
of the road, filled with cobblestones, with an outlet at one end is
Suitable as a subdrain, or a layer of logs may be placed trans-
versely across the roadbed and then covered with gravel; this will
answer as a drain and at the same time lift the road above all
dampness; a corduroy drain of this kind is cheap and lasting.
Culverts may be built of stone, brick, earthenware or tile and
iron pipe. For small culverts four two-inch oak plank mailed
in the form of a box will answer. But tile can now be obtained
of any size as cheap and is much better than wood. They are
easily laid and if properly bedded, with the earth tamped about
them, are very permanent. When the space is large, arch-cul-
verts, of stone or brick masonry, should be built. The top surface
of the tile-culvert should never be less than twelve inches below
the surface of the road or the pipes may crumble under the
weight of heavy loads. The culverts in our roads are generally
not sunk deep enough, they should in all cases be below the
bottom of the ditches. They are generally too small, they should
be built to accommodate an unusual flow of water and large
enough so as not to clog. They are not usually placed in the
roads sufficiently near to each other. This is especially true where
the road runs along a side hill. Above such a road is often a
high bank down which, during a storm, comes rushing a great
flood of water, and if the ditch is inadequate on the upper side,
or the culvert is too small to let through the volume of water,
the road will be washed.
Slopes.
A general defect on our public roads is the want of a proper
slope in cuttings and embankments. If the slope is too steep
there is always a tendency to a land slide, when the frost is
HIGHwAY MANUAL of NEW YORK. 279
coming out of the ground, or during heavy rains. The proper
inclination of such slopes depends upon the nature of the soil
and the action of the atmosphere and internal moisture upon it.
In ordinary loose earth or gravel the side slopes should be made
one and one-half horizontal to one vertical (1 1-2 to 1); in rock
one-quarter to one (1-4 to 1) is sufficient, but in clay two and one-
half to one (21-2 to 1) should be allowed, with this slope stiff clay
will seldom slide.
The natural, strongest and ultimate form of earth slopes is
a concave curve, in which the flattest portion is at the bottom.
This form is seldom given to the slopes in constructing them;
the reverse is more often the case, the slopes being made convex,
thus saving excavation and inviting slides. In cuttings exceeding
ten feet in depth the forming of concave slopes will materially aid
in preventing slides, and in any case they will reduce the amount
of material which will eventually have to be removed when clear-
ing up. Straight or convex slopes will continue to slip until the
natural form is attained.
It is not usual to employ any artificial means to protect the sur-
face of the side slopes from the action of the weather; but it is
a precaution which in the end will save much labor and expense
in keeping the roadways in good order. The simplest means
which can be used for this purpose consists in covering the slopes
with good sods, or with a layer of vegetable mould about four
inches thick, carefully laid, and sown with grass seed. Where
stone is abundant a small wall of dry stone may be constructed
at the foot of the slopes to prevent any wash from them being
carried into the ditches.
Bridges.
The construction of bridges is of great importance, and should
be undertaken With the greatest caution. It is too extensive a
subject to be treated within the scope of this article in more
than a general way. The person whose duty it is to build a
bridge upon a highway should carefully study the situation to
which the structure is to be adapted. If the , bridge is to be
built over a large stream and is a structure of greater than ordi-
nary size he should bring into use the services of a practical
280 HIGHwa Y MANUAL OF NEW YORK.
bridge engineer. This should not be necessary in the construction
of bridges over small streams.
The iron bridge with stone abutments is unquestionably the
best bridge, but the first cost is much greater than that of a
wooden structure. Upon a much-used highway it would be true
economy to place the iron bridge; the cost of repairs to the wooden
structure will in a very few years equal, if not greatly exceed, the
additional sum required for the construction of the iron bridge.
The iron bridge will outlive two, if not more, timber ones.
A wooden bridge of oak or southern pine on a country road will,
however, last a generation and with wooden abutments will not
cost half as much as an iron bridge. The means at the disposal
of the highway officer often renders the wooden structure the only
feasible one to build. Small wooden bridges can be safely con-
structed upon abutments constructed with driven piles and a
heavy timber bolted upon the top as a binder. The piles should
be of oak, ash, elm, hemlock or spruce. They should not be less
than eleven inches in diameter at the butt. A pile fifteen inches
in diameter at the butt will still be nine inches in diameter when
the six-inch pile has entirely decayed, and the cost of the larger
pile is comparatively but a trifle more. They should be driven
So as to lean a trifle shoreward and up the stream, arranged with
a face of proper length with wings extending obliquely toward
the bank. The piles should be bound together with timbers
and the space between the piles and the bank filled with loose
stone. We insert here a plate illustrating this method of placing
piles:
/7.
... Sº
~ \
{ M////6 “s
A/ZA)
**, 2/22/ZAs Z24, 24ce °23’sº
º º * p £S
@k. - 4'-36%-4'-'7%
The piles should be driven until they reach a sufficient depth
for a proper firmness and durable support. In sand it is seldom
necessary to go below ten feet.






HIGHWAY MANUAL OF NEw York. 281
If the soil is dry and hard, it may be softened by pouring water
around the pile; in this way the driver will do much more efficient
Service.
In larger streams where the length of the span requires the con-
struction of piers, the wooden crib, or “cob-house’’ form is more
suitable for the abutments and piers of a bridge. These are con-
structed of hewn timber, sunk in the water, placed rectangularly
one above the other. These cribs are then filled with heavy rock.
The appended cut gives an idea of the construction of the crib
work, piers and abutment.
Piers should be avoided when possible, for such supports are
obstructions to the stream and liable to damage in time of
freshets. Other forms of support should therefore be devised for
strengthening the beams of long spans. Where piers are unavoid.
able, the upper end should be pointed in the shape of a V to
prevent damage by floating ice and floodwood.
A substantial and inexpensive bridge over a small stream, call-
ing for a span of ten feet or less, may be built by stretching across
the stream old iron railroad rails, covered with flag-stones, under
two feet or more of dirt and gravel.
Dirt Roads.
The drainage of dirt roads is very important, as they do not
shed the surface water readily and as dirt is a great absorbent of
water. Its width should not exceed eighteen feet and its dryness will

282 HIGHwa Y MANUAL OF NEW York.
depend much upon its convexity. The arc should extend
from ditch to ditch and should always be from ten to twelve inches
higher in the centre than at the edge.
The scraper should be run over a dirt road constructed in this
way, at least once a week. The scraper should be so constructed
as to draw the dirt from the side ditches into the middle of the
road. Either a wheel scraper or a heavy float formed with a bar
drawn on the oblique will perform this service. The pathmaster
generally works the road in the spring and fall. During the summer
months it is entirely neglected and as a result becomes filled with
ruts. The frequent use of the scraper Will fill the ruts and if the
traffic is not too heavy, the road, if properly constructed, will
always be in good condition. In addition to this scraping all stones
larger in size than a hen's egg should be removed. The ruts
should never be filled with stone or other refuse matter. It is
absolute criminality for any person to dump stones or refuse mat-
ter in the foad, and is punishable by law. If stone are used they
should in every case be broken to a proper size and laid with care,
or placed so far below the surface that they would never crop out
On top.
- Sand Road.
If a road is laid over a sandy soil, common clay can be drawn
upon the surface and when mixed with the sand will form a hard
compound, and always greatly improve the road. It should be
used in every case when possible and when nothing better is
obtainable.
Clay Roads.
On the other hand, if we are to contend with a pure clay road-
bed, a covering of sand or fine gravel six to eight inches thick
should be placed upon the surface, this when mixed with the clay
will form a dry and hard bed. Coal ashes and screenings or slag
from the forge or furnace are valuable mixtures for clay roads.
Gravel Roads.
The gravel road is much better than the dirt road, and in some
cases is as good, if not better, than the broken stone road on the
macadam plan. In preparing the surface for the covering of
Macadann Road.


HIGHWAY MANUAL OF NEW YORK. 283
gravel, care should be taken to secure a smooth, dry and settled
bed. It is not necessary that there should be as much convexity
as in the dirt road, but the curve should extend from ditch to
ditch as in all roads. The gravel should be graded into three
classes, the coarse gravel and small stones should be placed at
the bottom, no stones, however, of a greater diameter than two
and one-half inches should be used, unless placed a foot below the
surface; this layer should be covered with the second grade, con-
taining no stones larger than one inch in diameter; this should
then be covered with the fine gravel. Before placing the last
layer the road should be well rolled; if a roller is not obtainable,
it should be allowed to remain until packed before the last layer
is spread. When ruts appear they should be immediately filled.
The gravel road is in some respects an ideal country road, and
constructed upon a well-drained bed, rolled or traveled to a proper
hardness, its surface becomes smooth and fixed, and is quite imper-
vious to the action of water and the weather. It is cheaper than
the macadam road, although it is not as durable, and is easily
maintained, especially is this true if the material is easy of access.
Gravel beds are generally found conveniently situated in every
township for highway purposes, and if the macadam plan of road
construction can not be adopted because of its greater cost, the
gravel road is a fitting substitute.
Macadam Roads.
It seems to be generally accepted by ill persons who have
given the question consideration, that the macadam plan of con-
struction is the best for our country roads. The greatest objec-
tion to this method is its great cost, but by the use of figures and
of actual experience, it can be clearly shown that a macadam
road will pay its cost every ten years. The cost of maintenance
is much less than that of any other kind of road commonly used.
The amount of saving in the wear and tear of horses and wagons
and the increased load which can be drawn, is a great item.
Therefore, this road, although involving a greater cost at the
outset, is, in the end, the cheapest.
The macadam road is simply composed of fine stone solidified,
united by pressure and bound with stone screenings. It can be
284 HIGHWAY MANUAL OF NEW YORK,
constructed upon any soil which is well drained. It should be
founded on hard pan or subsoil. In building such a road from
a common dirt road, it is essential that the surface should be
scraped or excavated to form a good foundation. The earth
should then be thoroughly rolled, in order to compact it and pre-
vent the sinking of the broken stone.
The roadbed should not be too wide, extra width increases
the cost of construction and maintenance and adds nothing to
its value. In the eastern counties of Pennsylvania, on the main
roads, the standard of sixteen feet has been adopted, a less width
than this, however, say from twelve to fourteen feet, is often
wide enough for our country roads where the traffic is but ordi-
nary. In preparing the surface for the placing of the stone, a
slight convexity should be provided for. This may be done by
digging trenches about six inches deep, nearly perpendicular on
the outer edge and sloping back toward the center of the road.
The earth removed from the trenches should be scraped toward
the center of the road, thus forming a roadbed sufficiently convex.
The ditches thus formed will provide a retaining wall for the
covering of broken stone. The covering should then be applied
of a depth equal to the heighth of the outer edge of the trench,
so spread as to retain the convexity to the 3enter.
The convexity of a macadam road need not be as great as that
of a dirt or gravel road. It will be sufficient to make the center
only six inches higher than the sides. The following statements
relating to the construction of a macadam road are taken from
an essay written by Henry Irwin, assistant engineer, Canadian
Pacific railroad, Montreal, Canada, and published in the “Move
for Better Roads.”
“The stone for the macadam should be broken into uniform,
well-shaped, cubical pieces; for the first coating it may be of such
a size that the smallest stones should not be less than two inches
in diameter and that the largest should pass, in any direction,
through a three-inch ring, and the best quality of stone need not
be used for this coating, if good, sound, second quality of stone
can be procured at a better advantage. For the top coating, and
for all future repairs, the smallest stones should not be less than
HIGHWAY MANUAL OF NEW YoFK. 285
one inch in the least diameter; seventy-five per cent of these
should not be over two inches and the other twenty-five per cent
not over two and one-half inches in diameter. Stones less than
one inch in diameter will not stand the pounding of the traffic.
They will break up and hinder the other stones from binding
properly; while stones that will not pass through a two and
One-half inch ring will make a rough road and do not bind
together well, being very liable to tilt up Inder the wheels.
“The breaking of stone to a uniform size and sufficiently small
is of great importance. A few large stones projecting above the
general surface considerably increase the resistance to traction, as
the vehicle has to be hauled up over the stone, and in dropping
down upon the other side pounds a hole into the surface. This
hole itself increases the evil that caused it, and an uneven road
is the result.
“Having then procured good uniform-shaped macadam of the
proper size, a first coating, four inches thick, of the larger size, as
above mentioned, should be laid upon the foundation and rolled
until it is well consolidated. If possible, it should be well watered
or advantage should be taken of wet weather to facilitate the bind-
ing of the materials. On this layer a top coating, four inches thick,
of the smaller stone is to be laid. This should be coated with a
layer of fine screenings from the broken stone or with fine gravel
sufficient to fill the surface interstices between the stones and to
cover them about half an inch. If screenings or fine gravel can
not be obtained, a thin coating of any coarse and perfectly clean
river sand may be used instead, but on no account should any fine
or dirty pit sand be put on the road; coarse pit sand may be
allowed after having been thoroughly washed so as to remove all
earthy matter and the finer particles of sand, which would work
down between the stones, prevent them from binding and convert
the macadam in a short time into a loose mass of rounded stone
little better than ordinary gravel. In this connection it must be
remembered that the whole reason for using small, uniform-
shaped macadam is that it will of itself consolidate, under traffic,
into a firm, compact and Smooth roadway through the stones being
wedged together among themselves, and that if any loose, earthy
286 HIGHWAY MANUAL OF NEw York.
or other fine material be mixed with the stones they can not
become properly consolidated. *
“The last coat, after being properly blinded, should be watered
and well rolled with a heavy roller, preferably one driven by steam
and not less than ten tons in weight.”
Mr. Irwin advocates eight inches as the thickness of the cover-
ing; in country roads, where the traffic is not extraordinarily
heavy, a thickness of six inches would be sufficient, except
in low and swampy places where a covering of extra thickness
Should be used to prevent the road from being cut into ruts after
heavy frosts. *
Professor Shaler says: “All macadamized roads should be
double; on One side covered with broken stone, on the other having
the natural foundation of the soil. If the soil way is kept in fair
repair it will be preferred by sensible teamsters for more than
half the year in all regions and in many sections of the country
for more than three-fourths of the time.” If such a plan is adopted
the macadamized portion of the road need never exceed twelve
feet in width, and often a road-bed of nine feet would be wide
enough. The cost of the construction would be materially reduced,
but the cost of maintenance of such a road would be increased,
and the most economical method would be to macadamize the
entire roadway to a width of sixteen feet, which in all cases should
be accepted as a standard width for macadamized roads in our
country districts.
Under the new county road law, chapter 333 of the Laws of
1893, constituting sections 54 to 58, inclusive, of the Highway Law,
it is made possible for counties to adopt a system of county roads
to be constructed, maintained and repaired at a county expense.
It is probable that in counties where the need of improvement in
our country roads has been brought home to the people that this
system of road construction will be adopted. Under this system
the macadamized road is the most practicable and will undoubt-
edly give the greatest satisfaction and should be generally
accepted as the standard county road. With the purchase by the
county of improved machinery for crushing, spreading and
rolling the broken stone, the cost of construction will be brought
HIGHWAY MANUAL OF NEW YORK. 287
to a minimum. In every township there are quarries of stone of
the proper quality for macadamizing; the cost of transportation
from the quarry to the road would depend entirely upon the dis-
tance to be traveled. It is impossible to estimate with any
degree of accuracy the actual cost of a mile of macadam road;
there are so many circumstances dependent upon location, kind
of soil, drainage, etc. Competent engineers differ in their esti-
mates. But a macadam road suitable for country purposes, with
a road-bed sixteen feet in width, with a covering of from six to
nine inches thick, need never exceed in cost three thousand dollars
a mile even under unfavorable circumstances, and in many cases,
when well drained, such a road could be built for two thousand
dollars.
In the permanence and excellence of the macadam road much
depends upon the ability of the person who supervises its con-
struction. Under the new law the board of supervisors is to
appoint a county engineer, whose duty it is to supervise the build-
ing of all county roads. He should be a well-trained civil
engineer, thoroughly informed in all matters pertaining to road
construction.
Material for Covering of Macadam Road.
The materials used for macadam roads must necessarily vary
according to the locality. The qualities required are hardness,
toughness and ability to resist the disintegrating action of
the Weather. These qualities are seldom found together in the
Same Stone.
The harder slate rocks form a valuable surface for roads; it
will last for years, making a dry and smooth surface. It is
especially valuable for cross-roads or roads where the traffic is
light. For our main roads it is not sufficiently compact and
crumbles too soon for a proper durability.
Granite is valuable because of its hardness and the readiness
with which it breaks under the hammer. The fragments adhere
quickly under pressure, but the mica, in some cases, causes it to
'break up and grind away.
Jºmestone is a good material for road covering. It is more
impervious to wet than any other, and will not disintegrate as
288 HIGHWAY MANUAL OF NEw YorF.
soon in dry weather, owing to the well-known quality which all
limestone has of absorbing moisture from the atmosphere. A
road constructed with this covering is fairly durable and is
smooth and pleasant for ordinary traffic. The limy nature of the
stone produces a process of natural cementation whereby the
whole mass soon becomes very firm. The abundance of it in the
country has brought it into general use. It breaks readily into
cubical sections and is therefore cheap to manufacture and con-
venient to handle. The spaces between the broken stone should
be filled with powdered or finely-broken limestone and not with
sand, which prevents adhesion and adds nothing to its firmness.
Magnesian limestone, or common marble, when crushed, makes
a substantial and enduring covering.
The trap rock of the Orange and Bergen hills of northern
New Jersey possesses the qualities of hardness and toughness
to a high degree and is very suitable for stone roads. It is
much used in the construction of roads on Staten Island and
around New York city. It is an interesting fact that the vast
ledges of rock on the Hudson river, known as the Palisades, are
composed of this kind of trap rock. A large establishment for
crushing has already been established near Palisades, N. Y.; with
excellent facilities for transportation by rail and water, this
broken stone can be obtained in any part of the State at a
reasonable cost. Rock of this kind is also found in Greene and
Albany counties.
Blue Stone, as it is called, which is found in large ledges in the
Eielderberg mountains and is also abundant in the central and
western counties of the State, is a valuable road metal. Large
quarries of this rock are being developed in Bethlehem, Albany
county, where it is being prepared and crushed very extensively.
This variety of crushed stone can be obtained ready for use,
loaded upon the cars or boat, for from seventy-five to ninety
cents a cubic yard, according to quality.
Before the invention of the crusher, men were employed by
the day to break stone and this was for years the only means of
obtaining material for road covering. It was customary then to
draw together all kinds of rock, great and small, and pound them
IIIGHway MANUAL OF NEW YORK. 289
with hammers until they were reduced to the proper size. The
invention of the stone crusher has lessened the cost and greatly
increased the availability of crushed stone for our roads. There
was always one defect with the hand-crushed stones, they were
too apt to be unequal in size, while some were too small the most
of them were left so large that they fitted into each other imper-
fectly. But the machine-crushed stone are more uniform and
smaller in size, giving the machine-crushed stone the preference
in the market. Many quarries in the State are being opened, and
the rock crushed for road purposes. A large industry is thus
being developed and competition and increased production have
so lessened the price of the material that the macadam road of
the present is not so much an extravagance and luxury as in the
past.
A portable stone-crusher will turn out stone enough for the use
of four ordinary townships and can be purchased for about $1,000.
An ordinary threshing engine could be rented to furnish the
power. Such a crusher will turn out eighty perches of stone
in a day which at fifteen cents a perch, a small price, would
equal twelve dollars a day, enough to pay the wages of three men
and the rent of and coal for the threshing engine. If the county
road system is adopted, the machinery for crushing stone would
be owned by the county, and if the towns wished to build stone
roads independent of the county, arrangements could be made for
the use of this county machinery. If the county road system is
not adopted, four or more neighboring towns desiring to construct
highways of crushed stone should combine in the purchase of this
expensive machinery and thus the investment of capital at the
outset would not be too burdensome. There are in nearly every
town ledges of rock suitable for road construction; with portable
machinery placed as convenient as possible to the proposed
location of the new road, the cost of transporting the stone,
which is generally a great item, would be lessened. The desired
object to be gained is the construction of a good macadam road
at the least possible price; this can be best obtained by the
investment of capital in town machinery and using the material
nearest at hand, even at a sacrifice of quality. There can, of
37
290 HIGHWAY MANUAL OF NEw YorF.
course, be no question as to the difference in the quality of the
road built of the different rock, but, a road built of a poorer
grade of material which is conveniently accessible is more eco-
nomical than one built of an extra grade of material secured at
great cost. Even the best rock will wear out and when it does
there is the same extra expense of repairing; the poorer road will
wear out quicker but the material for repairing is always easily
obtained. Therefore, the cost of construction is a great deal less
and the cost of maintenance not much more.
COMMON SENSE IN ROAD MAKING.
A Few Common Errors Pointed Out in MaCadam
R0ad Construction.
[Prepared for this Manual by ISAAC B. POTTER, Editor of Good Roads.]
THE THICKNESS OF THE MACADAM CRUST.
The State of New York supplies a great variety of useful
material for the construction of country roads and it is likely
that the macadam form will become most widely used within the
next few years. I say this because it is generally cheaper than
the Telford form, and in most parts of the country is quite as
good as the Telford in every requirement that goes to make a
good road. But a knowledge of maſcadam road-making has not
become very general and this lack of knowledge is likely to lead
to wrong conclusions and to extravagant forms of construction.
For nine-tenths of the country roads within the State of New
York, and for many village streets, a macadam “crust” of six
inches in thickness of uniformly broken stone will form an excel-
lent, smooth and durable roadway. Beyond this thickness every
inch means thousands of cubic yards of wasted material and an
increase of cost in proportion. Indeed, for many cross roads, I
believe that a thickness not exceeding four inches could be used
in making many miles of Splendid roads, and I have in mind an
excellent road within a few miles of the place where I am now
writing, which was originally made but four inches in thickness
and which has stood constant traffic for several years without
292 HIGHWAY MANUAL OF NEW York.
showing signs of failure. I do not recommend a four-inch road
for general use, even in the country, and I mention this instance
only to show that four inches of macadam material, if skillfully
put down, can be made to serve well for all purposes of a road-
way. The fact that we are lacking in the skill, and that most
country roads are likely to be neglected in matter of repairs,
impels me to recommend a thickness of six inches as the most
suitable and reliable for country use.
How WIDE SHOULD THE MACADAM BE 2
Another point in which economy can be practiced is in fixing
the width of the roadway. If too wide it costs more to build it
in the first place, and besides this, the cost of maintenance is a
perpetual waste just in proportion as the roadway is too wide.
Fifteen to sixteen feet of macadam is wide enough for any country
road of which I have any knowledge in the State of New York.
In the suburbs of important towns this width may be sometimes
increased, but I am writing now for the farmers, who have a
direct interest in this improvement and whose frugal disposition
and strong sense will oppose anything but a durable road made on
a common-sense plan at a minimum of cost. I have suggested a
width of fifteen or sixteen feet for well-traveled roads, but for
many unimportant branch roads a width of eight feet would be
sufficient to greatly facilitate the farmer's business and enable
him to reach the main roads with double the loads hauled by
his team over the common dirt roads. This question of width.
is one that must be decided in each case by the application of
practical, common-sense rules. If the traffic between town and
country has reached any degree of importance, then the width
of the roads running into town should be about fifteen feet in
order to enable two loaded wagons to pass each other; but if
the road under consideration is not an important one, and the
loaded wagons pass mostly in one direction, a width of eight feet
will generally be sufficient.
ROAD MARING MACHINERY.
Every county should own at least one good steam-roller of not
less than ten tons in Weight, and each town should have at least
one stone-breaker. The latter is made in various sizes and cam
HIGHway MANUAL OF NEw YorF. 293
be run by the same engine that is employed to run a thresher.
Some of them can be run by horse-power. A good stone crusher,
suitable for breaking stone for country roads, will cost from about
$500 to $1,000 and will crush from five to ten cubic yards per
hour, the amount of stone crushed depending upon the nature
of the stone and the manner in which the machine is run. Stone-
crushers are easily operated, do not often get out of order, and
the cost of running is slight.
MATERIAL FOR MACADAM ROADs.
If you have doubt about the material contained in your county
or town, take a piece of the rock, or several pieces (if different
varieties are found), and send them to the State Geologist or to the
Professor of Geology in one of our leading colleges and get his judg-
ment as to the character and durability of the samples sent.
Many parts of the State will be found to contain field stone, which,
if put through the crusher and broken to proper size, will make
excellent macadam roads.
A FEW SUGGESTIONs.
Before putting on broken stone, excavate a bed for it and roll
the bottom hard and firm, so as to prevent the sinking of the angu-
lar stones into the earth beneath and a consequent waste of mate-
rial. If the bottom is left unrolled and the stone is put on loosely,
the first rain storm will carry water through it as through a seive,
the earth will be softened, passing loads will push the angular
stones down into the soft mud beneath, and the character of the
work is greatly damaged. After the bottom is rolled, if you are
using a heavy roller (say ten ton) you may put on a layer of six
inches of macadam material and roll it with a ten-ton roller, until
all “wave motion * under the face of the roller ceases as the roller
proceeds.
Up to this time you have put in no binding material or “filler;”
but after the rolling of the macadam stone is completed you may
throw on a clean sand “filler” to a depth of say half an inch, and
rolling should again follow. The first rolling has packed the
294 HIGHWAY MANUAL OF NEW YORK.
Stones as closely in contact with each other as they can be placed,
and the rolling of the filler or binding material has pressed much
of the sand down into the cracks or interstices between the separ-
ate pieces of stone. If now the macadam surface be well sprinkled
with water, the binding material or “filler” will be washed down
into the body of the macadam and will fill up the interstices which
could not be reached by rolling the surface alone. More binding
material should then be added, sprinkled and rolled, until the road
presents a hard and compact surface and it is then ready for use.
This method is undoubtedly better than that of throwing in loam,
sand or other material when the macadam is being put on, for by
such a method the binding material is apt to be lodged between
the stones in uneven quantities and to separate the stones in
many cases so that no amount of rolling will bring their surfaces
into actual contact, while if the binder is put on and washed in
after the stone layer is first rolled, it will find its legitimate place
between the particles of stone where the uneven, irregular sur-
faces have left a space to be filled.
MAINTENANCE.
Wagons, horses, harnesses and everything connected with the
use of a road gradually wear out, and so does the road itself. It
will need repairs from time to time and the experience of other
countries has shown that it is vastly cheaper and better to divide
town roads into certain sections and to put a man in charge of
each section, holding him responsible for the condition of the road
under his charge, than is the old fashioned method of congre-
gaiting in squads and patching the roads in a hap-hazard sort of
way once or twice a year. *
Finally, the whole question of making country roads is one in
which the same intelligent attention should be given as is given to
other practical questions relating to the business of the farmer.
The farm road is a part of the machinery of agriculture and it
deserves the same careful attention that is required in the care
of those things which we buy with our own money and keep
within our own homes for our individual use.
Road Space Cleared to Prevent Dannpress,


HIGHWAY MANUAL OF NEW YORK, 295
Road Dampness.
It is noticeable that through long stretches of country the
roads are kept wet upon the surface because of shutting off the
sunlight by means of shade trees. There is no doubt but that
trees planted along the highway, if properly trimmed, add much
to the beauty of the landscape and make traveling during the
hot summer months more of a pleasure.
But during a great portion of the year, when shade is not
needed, their tendency to obstruct the sunlight renders it difficult
to produce a proper dryness of roadway. It is not proposed to
do away entirely with the shade tree, but they should be thinned,
so that they will not be less than thirty feet apart, and trimmed
as high as necessary, to allow the Sun's rays to reach the road-
way. The umbra from a shade tree trimmed to a height of
thirty feet is sufficient for a sun shade. Every tree and brush
should be removed from the highway to a width of at least two
rods, unless a sidewalk is provided, in which case, they should
all be removed, except those adjacent to the walk. The free
access of air and light is necessary for a proper dryness. In a
forest, the roadway is always much damper than in the open
fields; this dampness can be removed by cutting away the forest
to the full width of the highway, which should be done in every
CàSé.
Maintenance and Repairs of Roads.
A proper system of road maintenance and repair would do
much toward alleviating the bad condition of our highways.
The evils most alarming and to be most strenuously avoided
are ruts and hollows.
Ruts.
If a road is neglected, ruts will very soon be formed. Not only
is this true of the dirt and gravel roads, but the macadam and
telford are also subject to this evil, although to a less degree.
Wagons, by careless driving, will seek the salme line, groves are
thus formed which soon become deep ruts. The use of broad
296 HIGHWAY MANUAL OF NEW YORK.
tire will obviate, in a measure, this difficulty. In Pennsylvania,
team wagons are required, by law, to have tire at least four
inches in width, and the rear axles are eight inches longer than
the forward, so that the wheels can never track each other.
Massachusetts has recently passed a law making mandatory the
use of four-inch tire upon wagons for heavy traffic. Ill Jºngland,
the roads are kept free from ruts by the use of wagons with
axles of indiscriminate length, so that the wheels of one wagon
may not track those of another and the rear wheels are universally
wider apart than the fore wheels. The New York Legislature
of 1893, passed a law, providing for a rebate of road lax equal to
one-half the full amount, not exceeding four days, for the use of
three-inch tire upon wagons drawn by two or more horses. This
was a move in the right direction, but the width of tire should
have been four instead of three inches. The great injury done
by narrow-tired wagons to our roads, however expensively and
durably constructed, would have warranted our legislature in
compelling the use of wide tires upon all wagons designed to
carry heavy loads. The wide-tired wheels with the axles of
unequal length, so that the wheels will not track, under heavy
loads, act as rollers and keep the road hard and well packed and
always free from grooves and ruts.
Tuts should never be filled with stone or refuse matter. The
care and attention of the overseer, directed toward improving the
road oftener than once in the spring and once in the fall, will
produce a cure of ruts. The scraper kept in his shed during the
summer months should be taken out for an airing and run over
the road in his district at least twice a month, if not oftener.
The ruts can thus be cut down and filled up and he condition
of the mind of the traveler, as well as that of the road, can be
materially improved.
Hollows.
We have already stated that all roads should be constructed
With a proper convexity. It is important in maintaining the
roads to pursue this form. By constant use this convexity will dis-
appear and, if the overseer is neglectful of his duty, the road soon
HIGHWAY MANUAL of NEW YORK. 297
becomes concave or hollow. The earth is pushed out from the
center of the road to the sides, making the edges of the ditches
higher than the center of the road. With this condition it is
evident that the surface water can not escape and the road-bed
itself becomes a waterway. On level roads the water stands in
pools from one rain-storm to another, forming sloughs and deep
mud-sinks. If the road is upon a hillside the water flows down
the center, washes away the dirt, leaving large, loose stone in a
deep gutter, which it is hard to consider a roadway, and is prac-
tically impassable. We insert here a cross section of one of these
washed-out gutters which are very common on our hill roads and
are often to be seen in comparatively level sections. Here the
outside of the road-bed is much higher than the center; the road-
bed practically becomes a canal, in which all the water from the
tablelands on each side flows in, forming a compound of slush,
loose stone, water and mud too horrible for civilized men to
regard as highways.
To repair roads that have reached such a depraved condition
should be the highway officer's first thought. It is a reflec-
tion upon any man’s official capacity to allow such holes to exist
under his very eye.
In treating this defect attention should first be given to the
drainage; the side ditches should be dug out and, if necessary,
suitable subdrains laid to relieve the natural dampness of the
soil. A scraper should then be placed at work and the earth
rounded up as well as posible; well-selected gravel should then
be drawn upon the center of the road, and when properly rolled
and packed the result will be a hard, dry, well-rounded road-bed,
a pleasure to travel upon and an honor to the community. The

38
298 HIGHWAY MANUAL OF NEw York.
figure here inserted shows a cross section of a dirt or macadam
road properly drained and rounded:
# $
t ; º | : º
— — — 24–s'—— 3'-- 18
! wn * -º
t *
*—3'—º-3-4-2-k– –
We also give here a view of a hard gravel road. A few years
ago this road was deeply rutted and filled with hollows and mud-
sinks. The engineer drained, and the drainage dried it and keeps
it dry. He rolled the earth bottom and the gravel top, and the
rolling made the road firm and level and keeps it so. The same
teams that could not haul 1,800 pounds over this road before the
improvement now haul three tons at all times of the year.
It is almost an impossibility to estimate the actual saving to
the farmer in the use of a road of this description. It must,
however, be clear to any person that the amount of money
expended in the proper improvement of a poor road is an investment
which will bring good returns. A bad road made good by the use
of intelligent labor, constant oversight and careful supervision,
does not necessarily mean an increase of the farmer's taxes, but it
does mean a saving in the cost of the marketing of the products
of the farm.
While, in many cases, it is impossible for highway officers to
reconstruct roads upon any of the more costly plans described
in this chapter, because of the limited means at their disposal,
there can be no reason why, by a proper and well directed use
of the means already obtainable, our roads should not be greatly
improved. This can be done without new laws; with no change
in our present systems. The brainless, haphazard, careless
Imethod of road-tinkering should give place to intelligent, syste-
matic and honest effort to repair and render passable the paths
that are termed highways.
Let every person who is given in charge the highways of our
State insist upon a proper enforcement of the law; let him
exact a day's work, not play, for every day legally taxed; let him
use the same force of intelligence in the performance of his duty

Gravel Road,

HIGHWAY MANUAL of NEw York. , 299
as overseer or commissioner that he uses to make his own busi-
ness successful and the people's roads will from the impassable
become passable, and the continual citing of existing bad roads as
a reason for the construction of great systems of State and
national highways would lose much of its pertinence in the argu-
ments now presented.
Road Improvement and Maintenance in the
State of New York.
By CHAPMAN L. JoHNson, C. E., Deputy State Engineer and Surveyor.
It has been said that the roads of a country are accurate and
certain tests of its degree of civilization. If we are to be judged
by this test we must abandon the proud claim we are wont to
make of the high degree of civilization and culture of the nine-
teenth century on the western hemisphere, for it is certain
that the common roads of the United States are inferior to those
of any other civilized country, and this is as true of our own
thickly-populated, prosperous and progressive State as it is of
the less favored sections of our land. Many of our sister States
are to-day far in advance of the State of New York in the care
and maintenance of their roads, while England, France, Germany
and Italy, all afford us object lessons which it behooves us to
study with care, in order to profit by their adoption of such
principles and methods as their experiments have proven wise
and to avoid those which have been proven unwise. I think it may
be confidently asserted that the system now in vogue of road man-
agement in our State is an injudicious and extravagant one, and
that much money, time and labor are annually expended on so-
called “road improvements,” which are either absolutely wasted
or so applied as to obtain results not at all commensurate with
the expenditures. A wise and well regulated system of manag-
ing the repairs of roads and of obtaining the greatest amount of
improvement with the least amount of labor is as important
as their judicious construction. Whether this system should
be one devised and controlled by a central State authority, or
whether the care of its roads should be delegated to the authori-
ties of the several counties, is a question for careful and serious
HIGHWAY MANUAL of NEw York. 301
legislative consideration. Cogent arguments can be adduced in
favor of both systems, but experience has proven the folly of
adopting any smaller unit of control than the county.
No radical improvements of our roads can be expected until
laws are enacted making it obligatory on either the State or
the several counties to place the care and management of their
roads in the hands of skilled and experienced men, who shall have
a fixed tenure of office of such length as would enable the public
to reap the benefit of their experience, shall be adequately remune-
rated for their services, and who shall be obliged to conduct their
operations on well-defined scientific principles instead of on hap-
hazard and wasteful methods now in vogue; abolishing the present
personal labor and commutation system and substituting in its
stead a system of a direct money tax. It is hard to ascribe a
reason why so prosperous and progressive a community as ours
should have so long remained content with the ineffective and
wasteful methods of road construction and repair which have
obtained up to the present time. Perhaps it is because the
capital and intellect of our State has been so engrossed in develop-
ing its manufactures and its avenues of rail and water transporta-
tion as to lose sight for a time of the importance of common
road improvement, but certain it is that the popular demand for
improved methods is now growing so strong that Legislatures of
the near future will be obliged to give the matter serious attention.
The farmer, with his growing intelligence and education,
demands greater facilities for intercourse with his fellow-beings
and better means of transporting his crops to the railroad station
or the wharf. The merchant and the professional man demand
better roads over which to pass for the transaction of their busi-
ness or for recreation, and lastly the rapidly increasing use of the
bicycle, which is a factor in this question not to be overlooked,
creates a demand not heretofore existing for a better system of
road maintenance.
If then this improvement is to come to pass, upon what rules of
construction should it be based? In a country so variegated in
its geological and topographical features as is our State no defi-
mite rules can be laid down equally applicable to all localities.
302 HIGHWAY MANUAL OF NEW YORK.
Methods which would be successful in the level ground and sandy
soil of Long Island would be abortive to the rolling land and
clayey soil in the interior of the State, and those perfectly proper
in localities contiguous to our large cities would be entirely out
of place if applied to the roads through the Adirondack wilder-
ness. Only general principles can therefore be laid down, leaving
the skilled State or county official free to change or modify them
as the Varying conditions of geological formation, topography and
locality may demand.
The following general propositions, subject to Such changes as
the local conditions may require, can, however, be stated:
First. A road should generally be as short as possible between
two points to be connected, but straightness should often be
sacrified to Secure good gradients. The writer is familiar with
many roads in this State where in their construction this prin-
ciple has been entirely lost sight of, and has in mind several
cases where roads ascend and immediately descend high hills,
whereas they could have been carried around the foot of these
hills with little or no increased length. Absolutely level roads
are not desirable owing, first, to the difficulty of properly drain-
ing them, and, secondly, to the fact that roads undulating with
grades, not exceeding one in thirty-five, afford to horses, by bring-
ing different muscles into play in ascending and descending, relief
rather than fatigue. Beyond this limit, however, it may be stated,
as a general rule, that the length of a road may be advantageously
increased by at least twenty times the perpendicular height to
be saved; or, in other words, if the ascent and descent of a hill
100 feet high can be saved by increasing the length of the road
2,000 feet it would generally be well to do so, though, of course,
determination of questions of this character should be largely
influenced by the nature of the traffic to which the road is to be
exposed. The mathematical axiom that “a straight line is the
shortest distance between two points,” should often, in road con-
struction, be disregarded for the apparently paradoxigal one that
“the longest way around is the shortest way home.”
Secondly. Great regard should be paid to the proper drainage
for a road-bed. Ditches of proper size and grade should be con-
structed upon each side thereof, in such manner as to conduct the
HIGHWAY MANUAL OF NEw YoFK. 303
Ö
water to the nearest spot at which the topography of the country
will allow its discharge from the neighborhood of the road, and
these ditches should be kept so cleaned out as to maintain at all
times the proper flow of water therein. So long as water is
allowed to remain upon a road-bed, or to stand in improperly con-
structed ditches alongside of the road, to slowly but surely soak
into the subsoil underlying it, the proper maintenance of a road-
bed is impossible.
Thirdly. In the cross section of a road its center should be higher
than the sides, to allow the water to pass freely into the side
ditches. What should be the extent or the shape of this “crown-
ing” is a question on which the best authorities differ, but I am
inclined to advise for a fairly level road, with a brokenstone sur-
face, a curve approximating a segment of a circle, but slightly more
convex in the center than on the sides, with a total rise of one in
twenty-four. This rise, however, should be increased on ascents
in order to prevent the water from running too far down a road
and washing it, for water runs off in the direction of the diagonal
of a rectangle whose sides are proportional to the two slopes, and
therefore the transverse slope should never be less than double
the longitudinal slope. It will, in the construction or repair of a
road, be found best to make the “subgrade” conform approxi-
mately to the adopted cross section, thus securing the placing of a
uniform thickness of coating over its surface.
Fourthly. As to surface material. On the sandy soil of Long
Island, where the subsoil immediately takes up the water from
rainfall, very good and economical roads are made by the use of
about eight inches of loam surfacing, and although it requires
frequent renewal, this can be done so cheaply that in this locality
this treatment will probably be found the best and most economi-
cal one. In by far the greater portion of the State, however,
recourse will have to be had to a broken stone or gravel “surface”
or a combination of the two. What should be the thickness of this
surface and whether the Macadam or Telford system should be
adopted (the main difference between the two systems is that in
the Telford a foundation of large stone is used to support the
broken stone, while in the Macadam the broken stone is placed
directly on the natural soil), are questions which must be decided
304 EIIGHWAY MANUAL OF NEW YORK.
;
©
by the varying conditions existing in different localities. In some
portions of New Jersey roads have been built with apparent suc-
cess with the use of only four inches of surfacing material, but
this has been upon a porous, sandy soil. I doubt whether satisfac-
tory results can be obtained in this State, taken as a whole, with
the use of less than an average thickness of twelve inches.
Fifthly. What would be the cost of improving and maintaining
the roads of the State in accordance with the principles outlined
above 2 No data exists from which to ascertain with any degree
of accuracy the correct length of the roads in this State, but I
will roughly estimate them, exclusive of streets in cities and vil-
lages, at something more than one lineal mile to the square mile,
or say from fifty to fifty-five thousand miles. The cost of improv-
ing those roads will of course vary with the different methods
adopted in the different localities, the proximity of roads to quar-
ries, etc., but I think an average cost of a proper improvement will
be found to be about $7,000 per mile, to which must be added an
annual charge for maintenance of about four per cent of original
cost. I know that these figures appear large, and at first sight
appalling, but when they are compared with the sums now annu-
ally wasted, and sometimes worse than wasted, in so-called road
repairs or road improvements, or with the vast sums so success-
fully expended by corporations and the State in erecting and main-
taining our railroads and canals, there is nothing in them to dis-
courage the advocate of “good roads.” It must be borne in mind
that it is not suggested that this enormous work should at the pres-
ent be entered into as a whole. What is urgently needed is the
adoption of such legislation as will secure the beginning of this
work on a properly devised system on Some one or two of the
most important roads in each county, and I sincerely trust that
the present agitation of this subject may result in the securing of
such legislation.
Note.— In the preparation of the above I do not claim credit
for much originality of thought, but have freely consulted stand-
ard authorities on the subjects and am largely indebted for the
principles enunciated to that admirable manual of road-making
written by W. M. Gillespie, C. E.
C H A P T E R III.
ROAD MACH IN ES.
It has been well said that man should never do what a horse
can do as well; this rule will also apply to the use of machinery.
In the construction and maintenance of roads, machines of
various kinds are used, which lessen the cost of labor necessarily
employed and greatly increase the quantity ºf work done. They
are all devices which add greatly to the efficiency of the labor
performed and are instrumental in bringing about a desired
state of improved roads. -
Among these are the wheel scraper, the stone crusher, heavy
roller, the driver, hand drill and wide tire. In this chapter we
will describe these machines and the purposes for which they are
employed.
Wheel Scraper.
During the past few years a great number of these machines
have been invented and placed upon the market, all of more or
less worth.
We insert here, a figure of such a machine, showing its
general form and the method of operating. It consists of a large
blade made entirely of steel or iron, which is so arranged by a
mechanism attached to the frame, from which it is suspended,
that it can be adjusted and fixed in any direction by the operator.
One end of the steel edge or scraper can be dropped lower than
the other, and, as it hangs diagonally, the dirt from the outside
of the road can be scraped to the center, thus giving the road,
when completed, a proper convexity and smoothness. These
machines are chiefly employed in the forming and maintenance
of earth roads, but they may also be advantageously used in pre-
39
306 HIGHWAY MANUAL of NEW YORK.
paring the surface of roads for the reception of broken stone or
other improved covering. There are generally two sizes, one
that can be drawn by two horses and is suitable for friable soils
and easy grades and where the soil is first prepared by the use of
the plow; the other is made larger and heavier and can
be drawn by four or more horses, according to the work to be
performed. On old, long established highways, the heavier
machine is always preferable, as the soil is hard and com-
pact in many places and is not easily stirred. The light machine
in such soil has little effect without first plowing to a depth
desired to be scraped. Some roads run over heavy clays or
through solid pebble beds and great power is required to produce
a desired result. The heavy machine will be found adequate for
all these different conditions and the purchase of such a machine
is the best economy.
It is estimated that one of such machines can perform the
work of thirty men and do it much better. When applied to
country roads it will, in some of our towns, go over the high-
ways of an entire road district in one day. In many cases two
or more road districts can combine in the purchase of a machine
and find its capacity equal to the working of the entire territory.
By the provisions of section six of the Highway Ilaw, the com.
missioner of a town may, upon a request of the overseers or path-
masters of two or more road districts, purchase a road scraper
for the use of such districts, which shall be paid for by the tax-
payers paying an amount in money, not to exceed one-half of

HIGHway MANUAL of NEw York. 307
their road tax, for such purpose. This greatly reduces the Iºrice
to each district and makes the purchase of this valuable imple-
ment not at all burdensome. Taking into consideration the extra
quality of work done and the immense saving of manual labor,
these machines are justly regarded as valuable aids to road
improvement.
If a wheel scraper is not owned, every district should possess
what is called a “ drag scraper.” This is an implement which
can be easily and chèaply constructed. It consists of a cross
bar, six feet in length, and three or four inches thick by six or
eight inches broad, fastened diagonally across the end of a pole
to which the team is attached. On the lower edge of the bar is
placed a thin steel plate, about one-fourth of an inch in thick-
ness and four inches wide, to act as the scraper. The timber used
should be live oak and the pole should be the usual size of a
sleigh pole. On the top of this machine should be placed a long,
narrow box to deposit the weights and also to throw the stone
picked up from the road. It should also have a driver's seat
conveniently arranged for use. By attaching the pole to the
cross bar by means of a staple and thumb-screw, and them fasten-
ing a half circle of iron to the bar, with holes bored at suitable
distances apart, with an attachment to the pole, the angle of the
scraper can be changed at will by moving the pole on the circle
as desired. The cost of such a scraper need not exceed ten
dollars. It will be found very useful in leveling the surface of
the road and if used frequently will keep the road free from ruts.
The Roller.
After a proper use of the scraper upon the road the roller
should be used to Smooth and harden the loose dirt.
Rollers are of two kinds, the horse roller and the steam roller.
TJpon our country roads, constructed of dirt and gravel, the horse
roller will answer every purpose, but upon the macadam or
crushed-stone road the horse roller does not exert a sufficient
pressure and the heavy steam roller is indispensable. In any
case the roller is of little use until the road-bed is prepared, with
proper culverts, well-constructed drains and a proper convexity
308 HIGHw AY MANUAL OF NEW YORK.
formed either by the scraper or by the importation of gravel or
crushed stone. Whenever new road is constructed or old road
repaired by adding new material it is useless to expect a smooth
and even surface unless a roller is applied. The wagons upon
loose dirt or stone will, in every instance, produce ruts unless
the surface is thoroughly hardened in this way. The horse roller
is of various designs and can be obtained weighing from one
to eight tons at a little less than one hundred dollars ($100) per
ton. (See figure.) The weight of the roller depends much on
the character of the soil; the firmer the bed the heavier it should
be. All varieties of soil being generally found in a road district
the weight of the roller should be adjustable.
The horse roller is preferable to steam for country roads, since
they cost less and require less skill in their management.
Several road districts can unite in the purchase of a heavy
roller, and the burden upon each district made comparatively
Small.
Next to the wheel-scraper, the roller, if frequently used, will
add more than any other implement to the good condition of our
highways.

HIGHwAY MANUAL OF NEW YORK. 309
h
Stone Crushers.
In towns where it is proposed to macadamize the roads, the
purchase of a stone crusher would be a saving of money. With
suitable stone within easy reach the cost to the town of the
crushed stone would be greatly lessened by the use of such a
machine. A portable crusher with a capacity of eighty perch a
day, with shafting and belting, can be bought for from eight
hundred to a thousand dollars. With this machine the crushed
stone would cost the town at a convenient distance from the road
about fifteen cents a perch, which is much less than the same
stone could be laid down at any railroad station or boat landing
near the road to be macadamized. This cost of fifteen cents a
perch includes the rental of a steam threshing engine at five
dollars a day. Two or more towns could combine in the purchase
of a stone crusher and the capacity would be sufficient to supply
the towns with all the stone required for their roads. The cut
here inserted is that of a crusher, arranged so as to be easily moved
from one place to another.
Pile Driver.
An important auxiliary to road improvement is the portable
pile driver. This machine is so constructed that it can be
placed upon a wagon and drawn from one part of the town to
another by a team of horses. It consists of a timber foundation
of heavy wooden cross bars, with two upright timbers from
twenty to thirty feet in height and adjusted with parallel tongues
or grooves fastened to the upright timbers in such a manner

310 Highway MANUAL OF NEw YorF.
as to firmly hold in position an iron hammer or drop, weighing
from one to two thousand pounds, so constructed as to slide up and
down the groove. The hammer is raised by horse power, with
rope and tackle, to a certain height and then disconnected from
the tackling, when it falls with great force upon the head of the
pile. For building bridges and protecting banks being washed
away by the stream it is very valuable and should be owned
by every town.
Drills and Dynamite.
Nearly every highway at some point is constructed over rocky
ledges or crests where a small amount of blasting would lessen
the grade and greatly improve the condition of the road. This
blasting has been left undone for many years because the high-
way officers have not been skilled in the use of the drill and explo-
sives. The implements when understood are simple enough and
can be used without great danger. Drills can be bought for a
small price at any hardware establishment or made by a skilled
blacksmith. The holes drilled should be about one and a quarter
inches in diameter and made deep enough to allow a sufficient
purchase upon the rock to be lifted, depending upon the condi-
tion of the rock and its surroundings. After the hole is com-
pleted, a cartridge or stock, as it is called, of dynamite or giant
powder should be inserted, upon the top of which is placed a car-
tridge of common black powder, with a fuse attached of sufficient
length so that it can be ignited without danger of premature explo-
sion. The cartridge of common powder ignites, and the concus-
sion causes the dynamite or giant powder to explode. Dynamite
is prepared in the form of a cartridge weighing from one-quarter
of a pound to a pound, or even heavier, as the condition requires.
It is surrounded by an absorbent so as not to readily explode in
handling. All of these articles can be secured from any hardware
store. The danger attached to handling the material for blasting
has probably prevented its common use in our country highways.
But there are many places that can only be properly treated in
this way. By its use many almost useless roads could be made
valuable. Dynamite, of course, is a substance that can not be
carelessly used, but it is so prepared at present, that, with due
caution, there is no real danger.
HIGH way MANUAL OF NEW YORK. 311
t
Wide Tire.
As a machine for leveling roads, the wide tire is of great use,
and is, in fact, a modification of the roller. The character of the
vehicles which are used upon a roadway has a great influence
upon its endurance to the beat of the wheels. The greatest defect
of Our American Wagons is that for a given weight of wagon and
load the tires of the wheel are extremely narrow. It is probably
true that on ill-conditioned and muddy roads, a narrow wheel
tire is an advantage for the reason that the thick mud has a less
extended hold when it wraps around the felloes and spokes; but
With this arrangement the interests of the roadway are sacrificed
to the convenience of the person who travels upon it. These nar-
row wheels, with tires often not more than one inch wide, cut
like knives into the road-bed and so deepen the ruts. This effect
is not so easily produced upon hard macadam roads, but on dirt or
even gravel roads it is useless to expect that narrow-tired wagons
can be used without forming ruts. No matter how much care a
road may have or how much the scraper and roller may be applied,
the heavy rains and then the long-continued drouths, with the
almost universal use of narrow-tired wagons for hauling heavy
loads, will fill our best-kept dirt roads with deep ruts and cut
the surface in such a way that a proper smoothness can not be
maintained. Every farmer using the highways for drawing heavy
loads should use a wagon with wide tire. Its beneficial effect
upon the roads should make it to his interest to change the wheels
of all his heavy farm wagons, or provide them with tire of a proper
Width,
The proper width of tire depends upon the weight of load to be
drawn. The ordinary tire for the common farm wagon should not
be less than four inches, but the heavy draft wagons should have
tires from five to six inches in width. Tires of these widths do
not increase the amount of force necessary to move the load,
indeed when the road-bed is soft the narrow tire will cut in where
the wide tire will stay upon the surface and the resistance be
thereby lessened. The wide-tired wagon as a farm wagon is better
than the narrow-tired wagon. Often the farmer has been forced
to cut his meadows by drawing heavy loads in the fall and spring
312 HighwAY MANUAL of New York.
upon narrow-tired wagons, which could be prevented by the use
of wide tire.
There should also be a difference in the length of axles of
wagons. The continual tracking of the wheels with narrow tire is
the principal cause of cutting the roadbed. With tire four inches
Wide and the rear axle eight inches longer than the forward,
a surface of sixteen inches would be rolled every time the
wagon went over the road. It must be apparent to every one how
useful in maintaining a smooth and compact surface such wagons
would be. .
It seems strange that with all these facts clearly recognized our
farmers should persist in the use of narrow tire. They are the
principal travelers upon our highways, they are more greviously
affected, socially, financially and in every other way, by bad roads
than any other class of our people. Yet they are the slowest to
adopt the use of such simple expedients as wide tire to improve
the condition of our roads. In many countries of Europe the use
of wide-tired wheels upon heavy wagons is made compulsory. In
Pennsylvania, the law requires that all heavy wagons shall have
the rear axle eight inches longer than the fore ones. This is
also the case in many other States. Our State Legis-
lature has recently enacted a statute providing a rebate
of highway tax for the use of wide tire upon heavy vehicles. This
is right as far as it goes. But the law should be made mandatory
and the provision of axles of unequal length should be added.
The great good that can thus be done to our highways would amply
Warrant the enactment of such a law.
There are some objections to the use of wide-tired wagons. One
of these is that on roads where the narrow tire is also used, the
ruts formed are a great hindrance and impede the easy move-
ment of the wagon. The best way to overcome this difficulty is
for the user of the wide tire to persist in his use and do a little
missionary work among his neighbors, prevailing upon them, for
the sake of better roads, to give up their narrow, rut-making tire
and adopt the more reasonable road-making wide tire. Another
objection is the expense and difficulty of changing our old wagons
Highway MANUAL of NEw York. * 313
from the narrow to the wide tire. But if all new
wagons or wheels purchased were with a wide tire it
would not be long before their use became almost universal.
There is an adjustable wide tire manufactured, so arranged with
clamps that it can be placed upon any narrow-tired wheel. This
can be obtained, at a small cost, from the manufacturer by sending
the exact circumference of the wheel and the width of the felloe.
The appended figure shows how this adjustable tire may be
attached to the felloe of a wheel. The use of this tire seems prac-
ticable and if used will answer the purpose of the regular wide
tired Wheel.
===---
É==
º
:=<=s
In conclusion, the adoption of wide tire is most earnestly urged.
Its good results are universally conceded, and it can be but a reflec-
tion upon the methods and intelligence of our farmers if this sim-
ple contrivance for the improvement of our highways is not
accepted and acted upon by them. Rutty and rough roads are an
abomination, wide tire will alleviate this condition. It is an old
French adage that says: “That vehicle that draws that load
should make that road and not that rut.”
40 §


C H A P T E R IV.
System of Highway Construction and Maintenance.
In all discussions upon the subject of better roads, the ques-
tion of the best system of building and maintaining highways is
a very important One. The agitators are universal in their
opinion that the present system of combined labor and money
taxation is unsuitable and can not be made to conform. With the
desired improvement. As a substitute for this, various systems
are suggested more or less adapted to the needs of the people.
That part of a community owning land adjacent to the highways
and those who secure their livelihood by transporting for short
distances the products of the land are most to be benefited by
good roads. These people are the real users of a highway, they
travel by necessity from their holdings to the nearest markets
carrying the products of the soil and returning with other articles
taken in exchange. They are taxpayers upon whom the burden
of road construction, according to any system, must rest most
heavily. A system which fails to provide for the proper con-
struction and maintenance of the highways mecessarily used by
these classes is indefensible and must, in every instance, prove
impracticable and unjust. -
The three systems most generally advocated are as follows:
The construction and maintenance of roads by the federal gov-
ernment; construction and maintenance by the aid and under the
supervision of the State; and construction and maintenance by
municipalities, which inëludes the county road system and the
labor and tax systems of towns and road districts.
The national system of highway construction means the
expenditure of a vast sum of money in the building of roads con-
HIGHwAY MANUAL of NEW YORK. 315
necting populous centers, which are already in direct communica-
tion with each other by means of railroads and waterways. Such
a system can not involve the improvement of the shorter cross
roads and the market roads running from the farm to the station
or boat landing. If it did, the cost would be far in excess of
even our most opulent resources. We will suppose that there
are in the United States 1,500,000 miles of leading market roads,
which is a small estimate; at the rate of $3,000 per mile to macada-
mize these roads it would cost $4,500,000,000, a sum equal to
four times the present national debt. Such an expensive system
of highway construction is entirely out of the question.
In laying out a system of national roads the first question to
be disposed of would be the time of beginning and the States
to be first traversed. The settling of these questions would
involve controversy and be productive of great rivalry. The com-
pletion of these roads under this system could not be constructed
in the near future, but the completing of the system would
require at least a generation. Indeed the expenditure of many
millions annually for a number of years would not produce any-
thing like a system of highways beneficial to the nation at large.
The railroads stretch from one corner of our country to another,
crossing and recrossing each other in every direction, until at this
time there is no section but that has its railroad facilities for
transportation, in proportion to its wealth and productiveness.
These railroads form our Appian ways. They have become the
Telford roads of commerce. The farmer can send his produce
from his very door to the best market, the manufacturer can ship
his wares to the consumer, however distant, without the use of
the national road, built upon the most scientific plan, extending
to the point desired to be reached. Neither are national roads
needed for military purposes; as soldiers can be transpotted by
rail with all their equipments to the threatened frontiers with
greater speed and ease.
In advocating this system, it is usual to refer to the magnifi-
cent roads of Europe, leading from city to city, all inder govern-
ment supervision, as examples for an ideal method of road main-
tenance. Before drawing the inference that such a method
316 HIGHWAY MANUAL OF NEw York.
should be adopted in this country it would be well to consider
the different conditions existing in European countries. The extent
of territory under the control of a single government is small and,
therefore, the number of miles of road to be maintained is much
less. The lands of these countries, being under a much higher
state of cultivation are much moré valuable and, therefore, roads
constructed in every direction can be maintained at government
expense without too grievous a burden of taxation. These roads
were built when the relations of all European countries were
strained, and were an actual necessity for the transportation of
military supplies; and all European powers now maintain them
as a part of their gigantic military systems. Many of these roads
were constructed before the universal use of steam and formed the
only means of communication between important points that
needed protection. Many of these roads were projected by mon-
archial authority and completed by the cheap labor of slaves and
peasants. If these roads were not already built it is questionable
whether they would be built at all. With these and many other con-
ditions existing in Europe that do not affect this country, it must
be admitted that, because a government road can be practically
maintained in those countries, is no reason why our government
should assume control of our highways.
A national system would involve the appointment of commis-
sioners and a great number of assistants, thereby creating
a large reinforcement to our already vast army of govern-
ment employes. It would render subservient to the federal head
at Washington, the many thousand miles of highways, running
through the farm and past the doorway, the channels through
which the farmer and tradesmen travel to sell their produce and
reach the school and church; all this at a sacrifice of local self
government, which, in itself, is fundamental to our republican
institutions. As well give up to government control the streets
of the cities as the roads of the rural districts.
A road department, then, added to our federal administration
of government at a great expense, as advocated by many, seems
ill-timed and unnecessary. If, however, an annual report could
be published under the direction of the Secretary of Agriculture,
HIGHWAY MANUAL OF NEw York. 317
containing road statistics and information relating to road con-
struction and maintenance, it would prove a valuable aid to the
local development and improvement of our highways.
The system of State aid and supervision in the construction
of roads has been advocated by many and a bill appropriat-
ing ten million dollars for roads connecting the principal
points in the several counties of the State, and providing for a
commissioner to lay out and supervise the construction of such
roads, has been before three of our State Legislatures for con-
sideration. The scheme, as thus expressed, has not met with
popular approval and will probably never become a law in such
a form.
To carry out the plan of roads running through each county
of the State, connecting the county seats and the more important
places, which cost many times the $10,000,000 sought to be appro-
priated by this bill. This amount would not construct over
3,000 miles of good macadamized roads, such as the state would
build. These would not include the leading roads of one-third
the counties of the State, and in those counties the roads desired
improved by the local traveling public would be left untouched.
The taxpaying citizens of our country districts do not desire to
build roads for pleasure driving. The leading market roads of
our counties, running from the hills and interior valleys to the
shipping points upon railroad, canal and river, are those that
deserve the attention of the State. To attempt a system of State
highways upon such a plan would involve the expenditure of many
millions of dollars and would be a scheme so vast that its utter
impracticability becomes readily apparent. The $10,000,000
would be but the edge of the wedge; the final completion of the
system would incur an almost unbearable burden of taxation.
All suggested plans of State aid include the appointment of a
State commission, who are given the power to arbitrarily deter-
mine the particular highways to be aided by the State. Thus the
local governments would be deprived of the power of locating
the local highways, which should properly belong to them.
The employment of convict labor upon these State roads is
also a part of the scheme of State construction and supervision.
818 HIGHwa Y MANUAL of NEW YORK.
This would be feasible and unobjectionable upon the roads adja-
cent to our prisons, but to build an entire system by such aid is
impossible, and the expense and inconvenience attendant upon
the transportation of the convicts from one part of the work to
another would render the construction as costly in this manner
as under a contract system. The building of roads near the State
prisons by the convicts would serve to give them employment and
afford an object-lesson of practical road building. The State Com-
missioner of Agriculture should publish in his annual report a
statement of the condition and development of the highways of
the State, as a stimulus to highway improvement.
The only system of road maintenance, which is in any way an
improvement over our present antiquated methods, is the county
construction and maintenance of highways, made permissive by
an act of the Legislature of 1893. This system can now be
adopted by any county of the State by resolution of the board of
supervisors. County maintenance embraces none of the objection-
able features of national or State supervision. The principle of
local home rule is recognized. The boards of supervisors are
composed of men elected to represent localities which are
to be directly affected by any change in our methods
of maintaining the roads. To them, under this system, is given
the power to designate the highways to be constructed and main-
tained at the county expense and, being locally interested, their
determination will be a just one and will result in the improve-
ment of such roads as the people most commonly use in their
every-day life.
All roads designated as county roads are to be leading market
roads, running in all directions through the country, reaching
from the productive farming communities to the point where a
market can be secured, or a shipment made. This designation
may not include all the cross roads which connect leading roads,
but will include those most useful for the people of the particular
locality traversed. Under this system it is not proposed to make
every road running by every farm a county road. This should
not be demanded, for it certainly would be unjust to compel the
HIGHwa Y MANUAL OF NEW YORK. 319
people of an entire county to contribute toward the improvement
of a road that would not be traveled by more than the farmers
residing along that road. The board of supervisors of a county
already has power, under section 61 of the County Law, to change
the location of county roads and can therefore straighten or alter
in any way the highways to make them conform to roads designated
under the provisions of the highway law providing for a county
road system.
It is sought to provide such a net-work of county roads in each
county that all classes of taxpayers will be benefited, wherever
they may reside, whether it be upon the county road itself or
upon the short cross-road leading to and acting as a feeder for
the county road.
The adoption of this plan does not necessarily mean the exten-
sive construction of a costly system of roads, but provides rather
for a county supervision and maintenance of such highways as
are of general importance. In most cases, however, it would be
advisable to reconstruct upon improved plans all roads that are
in poor condition in order to provide a system of uniformly good
roads and to lessen the cost of maintenance. Such reconstruction
would prove economical. The taxes might be increased, but taxa-
tion is not always to be considered burdensome because of the
amount levied. If the taxpayer can see his money expended in
the material improvement of existing conditions pertaining
directly to his individual happiness and prosperity he does not
feel himself injured by the taxing power. The farmer does not
think that his money has been wasted when he pays large prices
for labor-saving machinery. He knows that good improved
machinery will make farming easier and lessen the cost of pro-
duction. The road that leads from his farm to the market is in
the same condition as in the time of his fathers, the time of the
Scythe and cradle; he uses that road every day of his life and he
knows that its condition has its effect upon the size of the load
he can draw. Why, then, should he persist in the use of the old
antiquated method of highway construction when he discards so
readily the old and useless farm implements? We are confident
320 - HIGHWAY MANUAL OF NEW YORK.
that the increased cost of an improved road will not rest heavy
upon the farmer, and believe that the reconstruction of all poor
roads at a county expense would be an investment that must
necessarily prove beneficial to the farming class.
No system of road building can be efficient without capital.
To attempt to construct and maintain improved county roads
without the expenditure of a sum of money necessarily large
at the outset would be of no avail. To provide means for the
construction of county roads the boards of supervisors, under the
county system, are given the power to borrow money and “may
issue bonds or other evidences of indebtedness of the county
therefor.” There is a natural abhorence in the minds of all men
to debt of any kind. To persuade taxpayers that any scheme
involving a county indebtedness would be advantageous is a
difficult task. But by making manifest the bad condition of our
leading country roads, the great need of universal improvement
and the immeasureable benefits to be gained by properly con-
structed roads, the taxpayers should be induced to believe that the
incurring of a bonded indebtedness is not the worst of all evils.
The improved roads would add to the value of every farm, increase
the comforts of travel and lessen the difficulties of transportation,
and a county debt created to produce such results would never
prove a curse.
To produce a good result under this system of county roads, the
supervisors should select as county engineer, a man of practical
knowledge of road-building. To properly construct roads of any
kind and to keep them in good repair needs careful supervision and
attention. For this an able and competent man should be
appointed, who should be given sufficient powers and means to
properly maintain all the county roads.
It is not here contended that the law providing for county man-
agement is perfect in all its details. It may, indeed, have objec-
tionable features. It is, however, simply permissive and if, after
thorough trial, it does not prove effectual, the system may be
changed or the law may be amended and made to meet the
demands of necessity.
HIGHw AY MANUAL OF NEW YORK. 321
This law is, however, a step in the right direction. It provides
for a county supervision which, applied to all the roads in the
county, with the exception of a few shorter crossroads, must neces-
sarily be beneficial. It seems certain that maintenance of all
these leading market roads at a county expense, under the Super-
vision of a well-qualified engineer, with a corps of assistants,
who may be pathmasters, must result in the uniform improvement
of all the highways of a county, with but little additional burden
of taxation. The road district should not be obliterated in this
new scheme; the county engineer can not devote his individual
attention to every mile of the roads under his charge and hence it
is necessary for a proper maintenance that there be some local
supervision, under the directing influence of the county officer.
The town and road district officers, even under this system, have
their places. They can be made valuable assistants to the county
engineers and since the town road is not to be entirely abolished,
and they therefore have their duties as town officers, it seems
desirable that they be given concurrent jurisdiction over the
County roads, subject in every case to the direction of the county
engineer.
It may be that but few counties will adopt this system. But by
continued agitation the minds of the people will become thor-
oughly aroused and the result will be a universal outcry for
improved roads. The county system will then appeal to them as
the most practicable method of road construction.
The difficulty of bringing about any pronounced reform in our
Systems Of highway maintenance leads us to consider what can
be done with the law as it now is. The present law contains a
provision for a change from the labor system to the money system
of working the highways. The custom of calling out twice a
year the people of a road district to dig, shovel, and tear up the
dirt, with no definite plans and without supervision or direction,
has long out-lived its usefulness. These persistent and brainless
attacks upon our highways have resulted in no improvement and
have only served to continue their deplorable condition. In every
town the highway tax should be made payable in money, which
should be expended by the overseers or pathmasters upon the
41
322 IIIGHWAY MANUAL OF NEW YORK,
roads in his district. This can be done by a vote of the people of
a town at their annual town meeting.
The system of working roads, as it is called, has become demoral-
ized and should be called instead of road “working,” road “play.
ing.” The people are called out after planting, the neighbors spend
their time in gossip, each trying his utmost to see how little he
can do, and the man who succeeds best is usually the lion of the
day. The taxpayer under this system naturally enters into collu-
sion with the overseer or pathmaster to defraud the highway of
an honest day's work. The highway is never improved and it is
evident that with such a demoralized condition of things our
roads must remain in a sad predicament. *
This plan of paying all highway taxes in money is well advised;
it should be adopted by every town. Its utility is fully sustained
by the fact that wherever it has been tried it has given general
satisfaction and has added greatly to the improvement of our
country roads. The greater benefits derived from a money system
of working the highways are so apparent that the sooner the high-
way laws of the State are changed, making mandatory the pay-
ment of taxes in money, the better it will be for our highways.
If a farmer pays his tax in cash he will be anxious to see his
money properly expended, and if the roads show no improvement
he will hold his neighbor, the pathmaster, personally responsible
and make it particularly unpleasant for him if he continues to
neglect his duties.
With over $3,000,000 of annual road tax paid in cash, with over
40,000 pathmasters, each having under his charge less than three
miles of roads, with 250,000 farmers standing over these path-
masters as police, and with from fifty to a hundred rods of gravel
or macadam road required to be built annually by each path-
master, which would make an aggregate of 12,500 miles distributed
throughout the State, it is evident that the highways of this State
will soon present an improved appearance, and the cause of com-
plaint be in a great measure removed,
C H A P T E R V.
Profit and LOSS to the Farmers Based upon the
Character Of Our HighWayS.
Successful farming depends more upon good roads than is
generally supposed. The balance between the cost of production
and the market value of his farm products is the margin of profit
to the farmer. To increase this profit, then, it is necessary either
to lower the cost of production or raise the market value. It
does not lie in the power of the farmer to raise the market value,
he must therefore depend upon the decreased cost of production
for his increased profits. In this lies the farmers success or
failure.
Why does not farming pay as it should, is a question often
asked, and may be answered as resulting mainly from two causes:
First, want of just legislation; second, want of skill on the part
of the farmer himself. All legislation that admits of unjust taxa-
tion or excessive freight rates on any of our transportation lines
has its evil effect upon the net profit to the farmer. The truth
of this statement is generally admitted. An extensive discussion
of this subject, is, however, outside the present line of thought.
It is also beyond our limits to give in detail the losses that must
accrue to the farmer by unskillful management. But the losses
that must result from poor roads is a legitimate field for our
present discussion, and can not be investigated too minutely.
The farmer is slow to perceive the influence which the condition
of the highways has upon his individual prosperity. As he rides
and drives over them he is heard to heap violent abuse upon their
324 BIGHwAY MANUAL OF NEW YORK.
terrible condition, but he never weighs in his mind the effect
upon the profits of his business. He doesn’t enjoy the ruts and hol-
lows, mud sinks and sloughs, but he only thinks of it as affecting
his happiness and is too apt to regard a smooth, well-kept road as
an extravagance which only the rich can afford.
A little careful thought, however, upon the subject will clearly
show him that good roads are a benefit to him financially and
must increase the profits of the farm and thereby add to the
actual value of his holdings. Most farmers ship their produce
in the fall and spring. After the expense of harvesting, the farmer
is usually “short.” He needs money to pay off his extra help and
to meet his coming tax, and, worse than all, money for interest on
his ever-abiding mortgage. All these demands come in the fall,
when the roads are bad. But he can not delay,+ the money must
be ready at any sacrifice. The roads are hardly passable and be
must therefore content himself with small loads, slow transit,
extra teams and help. All this means great additional expense
and an increased cost of production, which, in many instances,
reduces his margin of profit to almost nothing. Tn the spring
the same thing must be repeated. He has a small surplus after
wintering his stock, which must be sent to market before the
spring work begins. Another siege of mud at another extra cost.
It is an old saying, that, “It is the last straw that breaks the
camel's back,” and these miserable roads often become the fatal
straw that breaks the farmer's back. Between unjust taxation,
exorbitant freight rates, poor farming and impassable roads, the
unfortunate farmer often sinks into irretrievable bankruptcy.
To illustrate more fully this cost of poor roads to the farmer
we will suppose that he is in possession of a farm of 120 acres,
located at least three miles from the market. On a good road
he can draw four loads of one ton and a half each, or six tons,
to market daily. On the average poor road he can draw but
two loads of one ton each, or only two tons per day. It would
then require three teams and three men to do the same amount
of hauling on the poor road that One man and One team could
do on the good road. A farmer should ship from a farm of 120
HIGHway MANUAL OF NEW YORK. 325
acres, under a good state of cultivation, at least 150 tons annually.
To haul this produce from the farm to market on a good road
would réquire, at six tons a day, twenty-five days. Allowing
three dollars a day for the team and man, the cost of this trans-
portation would be seventy-five dollars. Upon an average poor
road it would take seventy-five days for one team and a man to
haul this produce, which at three dollars a day would amount
to $225. It would, then, cost one hundred and fifty dollars ($150)
more to carry the annual products of this farm over a poor road
than over a good road. The good road, therefore, saves the falmer
just that amount, which would pay the interest, at five per cent,
on an indebtedness of three thousand dollars ($3,000), or in other
words it would add $3,000 to the value of his farm. Poor roads
are, then, instrumental in decreasing the farmer's profits. This
amount is an actual loss which should be guarded against, and
which can be prevented by a proper consideration of the lleeds
of the highways.
This $150 is often an amount equal to what he saves above
expense for the year. It may well be said, then, that good roads
are among the essential qualifications of agricultural prosperity.
Not only do poor roads decrease the profits of the farmer, but
they also reduce the value of the farm. All values are determined
by the amount of profit obtained. On 'Change, there are no ideal
values of property. The first question always asked is what rate
of interest will the investment pay. If the stock of a certain
railroad is fixed at a certain amount and its net earnings only
pay three per cent interest on this stock, its actual value decreases
to fifty cents on a dollar. So a farm may be estimated as worth
$10,000, but if it only produces enough to pay three per cent on
this value, its actual value instantly drops to $5,000. We will
suppose then that poor roads have increased the cost of trans-
portation of the products of the farm to the market, thereby lessen-
ing the amount of profit, as the amount of profit is thus lessened
in the same proportion the value of the farm is decreased.
Having thus discussed the loss to the farmer occasioned by
poor roads, we will now glance at the profits that may accrue to
him by the maintenance of good roads. Anything that makes
326 HIGHWAY MANUAL OF NEW YORK.
the country attractive enhances the value of country property.
It is said that the beautiful roads in Belgium, extending for miles
into the country from the city of Brussels, have nearly donbled
the value of the little holdings of the people along those roads.
Because of the excellence of these smooth highways, the horse,
in many instances, has given way to the bicycle, and artisans
of all trades, both men and women, think it no hardship to live
five or even ten miles from their business, so easy is it with their
artificial horses to glide over these roads to business centers.
The magnificent boulevards projected by the first Napoleon
and completed by Napoleon the Third, have, it is said, already
paid for their construction by the increased value of the farm
lands through which they have extended.
On Staten island, the splendid macadam roads that have cost
millions of dollars by direct tax on land values, have so added
to the actual value of those lands, that the tax is not considered
burdensome. By the construction of these roads, the farm lands
of the island have been taken up by persons residing in New York
city, who have built for themselves beautiful suburban homes,
All this has been to the great advantage of the Staten island
farmer.
The Social effect of good roads upon country life can not be
overestimated. The improvement of our highways would often
do away with the difficulty of visiting in our rural districts.
Bad roads often render social intercourse almost impossible. The
evening is dark, there are no side-paths, or lamp-posts along the
way, the roads are almost impassable with mud or drifted snow,
and as the family look out toward the light in the window of their
neighbor’s house, the gush of social life that a moment before
was moving in full tide is now checked by these many difficulties.
Life in the country, otherwise full of happiness, now sinks into
a tame existence, all for the want of a pleasant highway con-
necting the adjoining neighbors.
We append a plate illustrating the difficulties of one neighbor
attempting to cross over the highway to call on another. This
HIGH way MANUAL OF NEw York. 327
picture is not overdrawn, its fac simile may be seen every fall and
spring along our country roads. *.
What a burlesque on farm life, when a little extra attention
paid by the farmers in properly maintaining the roads would
prevent such a condition of things and add so greatly to the
Social advantages of the country.
There can be no doubt that poor roads have much to do with
the small attendance at our public schools. The country boy
and girl obtain the greater part of their education in early life.
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After the age of 15 the children are busily engaged in the care
of the farm or dairy. During the late fall and winter when
work upon the farm is at a stand still, there is an opportunity
given for school attendance. But this is at the time when our
public highways are at their worst, and the two or three miles
between the farm and school-house are traveled with the greatest
difficulty. Were our highways in a proper condition the number
of days of school attendance by these children would be more
than doubled, and the preliminary education of farmers' sons
and daughters would be made to equal that of his city cousin,
















328 HIGHw AY MANUAL of NEW YORK.
and a good common-school education might be obtained where
now an ordinary ifitelligence is often lacking.
Church attendance would also be greatly increased if our roads
were uniformly good. During half the year the pleasure of church
attendance is denied because of almost impassable highways.
The Sabbath in the country becomes therefore a day of languid-
ness, devoid of religious thought, with no care for religious teach-
ings, instead of a day devoted to moral development and Christian
attainments.
Our vital statistics show that a larger percentage of farmers,
and especially of farmers' wives, becomes insane than any other
class, and that the ratio of this insanity is increased in pro-
portion as the parties are isolated from society. This Ought not
to be. The occupation of a farmer is not a disagreeable one, it
is full of interest. Nature has a thousand charms for him that
no other occupation would provide. But this condition results
from his self-imposed isolation caused in many instances by neg-
lected and impassable highways. In the old dungeons of a more
barbarous age prisoners, after a few years, nearly all became
demented. A complete separation from human sympathy and
social intercourse was the cause of this insanity. This condition
of things was only a little worse, however, than that often pro-
duced upon the farmer by the impassable highways.
Open up the avenues of intercourse with schools, churches and
society, by improved roads and increased facilities for contact
with our fellow men, and country life, otherwise beautiful and
attractive, would become, indeed, what it should be, an approach
to our original Eden.
The early settler of any country first clears away the forest.
His little cottage is bereft of shade, to him every tree and
bush is the hiding-place of some beast of prey; hence the aesthetic
never enters his mind, he wants the practical. The farther the
forest is removed from his dwelling, the more happy and Secure
he feels. He cares nothing for flowers and shrubbery, he wants
corn and potatoes. The practical controls his every thought. His
house must be built close to the highway, his barn on the Opposite
§
A country Road Near Lenox, Mass., showing Side Path.

HIGHwAY MANUAL OF NEw York. 329
side near at hand. The road becomes the dumping-ground for
brush, stone and other debris. But as the forests disappear and
are supplanted by cultivated fields and neighbors become more
numerous, a sense of security is established, his aesthetic nature
rises to the mastery and the practical is superseded more or less
by the ornamental. This is as it should be. His buildings must
low be removed from the street, a lawn in front of his dwelling
is carefully laid out and beautified with flowers and shrubs; the
shade trees, so ruthlessly cut by his barbarous axe, are now
restored, and the gratifying shade is again earnestly sought. Pub-
lic sentiment is beginning to recognize the necessity of this aes-
thetic change. It is manifested in the establishment of Arbor
days in the different States of the Union, by which the planting of
shade trees and the forming of parks and forest preserves, have
added much to the attractiveness of our country homes.
The farmer makes a mistake in being too neglectful of this
needed transformation. He should endeavor to make his country
home as attractive as possible. It is said that “the older the
country the less charm has the city.” The aristocracy of England
all live in the country, they know and care but little for city life.
With their ample fields, beautiful homes and magnificent drives
on macadam roads, they feel that a few miles distance to the
metropolis is no disparagement and is near enough to the con-
taminating influence of city life.
In the efforts made by the farmers to make attractive their
surroundings — the ornamentation of the highways should not be
neglected. The roads should be constructed with the greatest
possible smoothness. A side path for pedestrians should be added
to all main highways, especially where they extend from one
village to another. On one side of the Appian way a well-graded
path was constructed its entire length, shaded by well-trimmed
trees, on which the pedestrian, rich or poor, could travel undis-
, turbed by the grinding wheels of the Roman chariots. If a well-
graded path was maintained on all our main highways the cause
of humanity would be better subserved and many an unfortunate
traveler driven by the mud of our ill-kept highways to the railroad
track would be rescued from an untimely death.
42
330 HIGHWAY MANUAL OF NEW YORK.
In England and Germany it is held that the telegraphic
pole is a nuisance and their laws require that they be abated
by placing the wire under the highways out of sight — public
sentiment should demand that this same nuisance be abated in
this country. The unsightly poles that now mar the beauty of
our highways and often needlessly impede the progress of trade,
as well as the custom of wantonly disfiguring our shade trees by
needlessly chopping off the limbs to make place for the wires,
should be relegated to the rear and become the hideous relics
of the past.
Attention should also be paid to the condition of the space
between the road and fences. Nothing can be more charming as
one rides through the country, than to see the brush along the
roadside cut and removed, trees well trimmed, stumps and stones
excavated and holes dug by some careless pathmaster filled
and graded by his more thoughtful successor. Such a condition
would produce a much different aspect from that which we often
behold, where the highways become the dumping ground for all
refuse of the farm and even of the house.
Money spent in beautifying our highways adds much to the
value of the property adjacent thereto. The condition of the high-
way has its effect upon the desirability of a farm as a place of
residence. To the farmer the highway is a street and it is as
much to his advantage that the road upon which he lives shall be
properly constructed, well maintained and beautiful in
appearance as it is for the resident of a city to live upon a street
Well paved and nicely shaded. To build a palatial mansion, at a
fabulous cost, on a street without first a certainty that the street
would be beautified and be made to correspond with the other
surroundings of the proposed mansion, is not consistent with an
artistic and complete effect. To attempt to improve a farm by
the building of a costly house and barns, or other constructions
tending to increase its productiveness, is inconsistent and without
a satisfactory result if the highway running by the house and
barn and through the farm is impassable, full of mud holes, and
has a generally dilapidated appearance. It, then, is certainly to
HIGHWAY MANUAL of NEw YoFK. 331
the advantage of every farmer that the highway running through
his land should be given a favorable aspect. He should, then,
give his attention to the care of that portion of the highway and
provide it with all possible ornamentation. In this way the attract-
iveness of country life will be much increased and the desira-
bility of the country as a place of residence will be made clearly
apparent. Thus the resident of the city whose eye rests upon
nothing but walls of brick and stone will look toward the country
for an ideal home, and the result must be a seeking after the
beauties and comforts of country life.
A rich banker once said to a farmer friend: “If all country
homes looked as pleasant as yours, every farm in the land would
be purchased at any price by business men who are wearied with
the confinement of city life.”
Properly-constructed roads, well maintained and tastily orna-
mented, must increase the desirability of the farm as a place
of residence; they must increase the profit derived from the farm,
as they lessen the cost of transportation, and therefore the value
of the farm must be also increased. If this is so, any amount of
time, attention or money expended upon the improvement of the
roads can but be a good investment from which the farmer Will
receive ample returns. Our national Census reveals the fact that over
fifty per cent of our population dwell in cities as tenants-at-will-–
this ought not to be. A nation is strong only as it fosters the fire-
side. True patriotism dwells only in the homes of the people, held
in fee simple—the tenement dwelling should be superseded by own.
ers of the soil. Here every effort possible should be made to develop a
love of the country; beautiful roads — pleasant drives — ample
shade — well kept lawns — will stimulate a love of the country –-
and transform our barren fields into valuable and suburban
homes.
I N D E X.
A.
Abandonment: PAGE.
statutory proceedings for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . © C tº e º ºs º e º is 184
description of highway to be filed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 183
IlollllSet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • - - - - - - 35, 183
from failure to open and work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
modes of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 182
of private road. . . . . . . . . . . . tº e º e º e s ∈ G e e º 'º e º e e tº e o 'º tº º ſº º sº º º & C º º ſº g º O ſº tº ſº º 0 176
Abatements:
for trees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 123
for sidewalks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16–18, 125
for watering-troughs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 127
for removal of fence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 127
for maintaining street lamps . . . . . . . . . . . . . . ... • - - - - - - - - - - - - - - - - 26, 127
for use of wagon tires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 126
of toll on plankroad and turnpike road for watering-trough. . . . . . . . . . 74
Abutter:
when public may use land of, for travel. . . . . . . . . . . . . . . . * † tº e g º C tº 4 & e > 221
right to occupy highway for business. . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 235
rights where fee is in municipality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
rights of, where owner of the fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 917
(See owner of fee).
Acceptance:
necessary to make dedication effectual . . . . . . . . Q & Q (º e º º tº e º e º 'º e º ºs º º .... 149
Accounts:
for services or material, how made out.... . . . . . . . . . . . . . . . . . . . . . . . 17, 138
Actions:
for seizing straying animals, limitation of. . . . . . . . . . . . . . . . . . . . . . . . . . . 102
against towns for construction and maintenance of joint bridge ..... 41
against persons allowing animals to stray. . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
for damages for defective bridges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
when judgment against town officers, a town charge . . . . . . . . . . . . . . . . 256
by towns against commissioners of highways. . . . . . . . . . . . . . . . . . . . . . . 252
on contract of commissioners of highways . . . . . . . . . . . . . . . . . . . . . . . . . . 254
claim for damages to be presented to Supervisor . . . . . . . . . . . . . . . . . . . . . 255
334 INDEX.
Actions — (Continued). # PAGE.
for damages, when commenced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
by towns, for injuries and obstructions on highway. . . . . . . . . . . . . . . 9, 256
when town board may pay claim without Suit . . . . . . . . . . . . . . . . . . . . . . . 252
how affected by revision of 1890 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
when town liable for defective highways and bridges. . . . . . . . . . . . . . 9, 252
what necessary to be shown to recover for injury from defect in high-
way or bridge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 251
what constitutes neglect of commissioners. . . . . . . . . . . . . . . . . . . . . . . . . . . 252
for removal of obstructions and encroachments. . . . . . . . . . . ........... 36
by town against Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 173
Agriculture, State commissioner of, to issue statement in regard to high-
Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Almshouse, exempt from assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Altering highways (See establishment of).
Ambulance, law of road, does not apply to. . . . . . . . . . . . . . e Q tº º 'º º 'º tº º tº 3 c e º 'º º 224
Animals:
dangerous, leading along highway. . . . . . . . . . . . . . e e º e º 'º e º 'º e º e e º 'º e tº 88, 226
wild, destruction of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
precept directed to owner of, how served . . . . . . . . . . . . . . . . . . . . . . . . 92, 93
straying, petition of person or officer Seizing. . . . . . . . . . . . . . . . . . . . . . . . . 91
straying, when to be seized, by whom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
actions against persons allowing to stray . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
straying upon highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Appeals:
from order compelling building of bridge between two towns . . . . . . . . 42
to commissioners from assessment by Overseer . . . . . . . . . . . . . . . . . . 15, 120
by non-residents, to county judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 121
Appian way, how constructed. . . . . . . . . . tº e º 'º tº e º e º e º e º s e g º e º 'º º e º e s tº e g º e e e 261
Application:
to lay out highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . * @ tº º ºs tº º e º 'º e º , 29, 151
to discontinue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 151
Arrearages of assessments, collection of, by Supervisors...... tº g º ºs e s tº 24, 134
Assessments:
non-resident lands, how made. . . . . . . . . . . . . . . . . . . . . . . tº º º º ſº º ſº e º 'º º is ſº tº tº e 117
of property partly within village . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 117
certain institutions exempt from . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 78
corporation property to be taken at value for corporate purposes . . . . . 117
what corporations are to be assessed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
commissioners can use town roll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
how made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 117
on persons not assessed by assessors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 118
on corporation, may be in any district. . . . . . . . . . . . . . . . . . . . . . . . . . 14, 117
to work highway laid out for one year. . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 120
personal, of occupant to be separate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,
120
INDEX. 335
Assessments — (Continued). PAGE,
credit for work on private road. . . . . . . . . . . . . . . . . . . . . . . ſº tº e º a s gº ºn tº # 6. 15, 120
reassessment if labor is not performed. . . . . . . . . . . . . . . . . . . . . . . . . . 16, 120
new, by overseers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 122
when tenant may deduct from rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 123
where property not assessed on town roll . . . . . . . . . . . . . . . . . . . . . . . . 16, 118
for unperformed labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 132
abatements of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18, 26, 123, 127
Axles of different lengths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
B.
Bicycles:
termed “carriages”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
entitled to free use of highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 225
Blue stone, covering for macadam road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
Books and papers, delivery of, to Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
IBoards of supervisors:
may make laws for the destruction of wild animals and weeds. . . . . . . . 58
may require commissioners of highways to make surveys and records
of highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 141, 188
may establish highways in counties of more than 300,000 acres of
unimproved land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, 188
may authorize town to borrow money to improve highways . . . . . 140, 186
may borrow money to maintain county roads . . . . . . . . . . . . . . . . . . . . 20, 112
may authorize alteration of State roads . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 143
powers of, as to roads, bridges and ferries. . . . . . . . . . . . . . . . . . . . . . . . . . 66
regulation of rates of toll by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
may direct expenditure of balance of State appropriations for roads
and bridges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 142
when may aid town in construction and repair of its bridges. . . . . . 59, 244
may designate and work County roads. . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 112
Imay establish districts in counties of more than 300,000 acres of
unimproved land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 142
may cause bridge destroyed by the elements to be rebuilt at county
expenSe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 244
may establish a grade of streets outside of city limits . . . . . . . . . . . . . . . . 62
to provide for the raising of money for the repair and construction of
highways and bridges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 243–4
when may authorize town to borrow money for roads and bridges. ... 61
when to provide for construction of bridges over county line. . . . . 61, 246
when may authorize a town to build bridge outside of boun, ary. . . . . . 60
to apportion expenses where bridge is intersected by town or county
lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 243–4
may establish county highways and bridges. . . . . . . . . . . . . . . . . . . . . . 58, 112
Breaks, water, in roads, how built. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
Bridges:
three kinds of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
when must be constructed and maintained by County. . . . . . . . . . . . . 61, 244
336 INDEX.
Bridges—(Continued). PAGE,
when towns may make application to board of supervisors to locate
and construct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 247
apportionment of expense where intersected by town boundary line, 60, 246
counties’ share of expense for construction of, how paid. . . . . . . . . . 60, 247
when town may be authorized to construct outside of boundary... 60, 244
over county lines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 244
raising an expenditure of moneys for............... * * * * * * * * * * * * . 62, 243
unsafe toll bridge, repair of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 249
liability of towns for defects in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 242, 251
when iron or steel must be approved by State Engineer and Surveyor, 44, 246
when commissioners of highways may build with consent of town.
board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
when court may compel commissioners of highways to build......... 346
when town not liable for breaking of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 226
levy of tax for repair of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
commissioner of highways to make statement of expenses for . . . . . . . . 41
When town expense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 243, 244
When County expense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 244
location and construction by boards of Supervisors. . . . . . . . . . . . . . . . 58, 244
county aid to towns for the construction and repair of . . . . . . . . . . 59, 244
when county to bear part of the expense of building. . . . . . . . . . . . . 243, 247
when commissioners of highways may apply to court to compel con-
struction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
when board of supervisors to borrow money for town . . . . . . . . . . . 61, 245
rebuilding of, when destroyed by the elements . . . . . . . . 7, 59, 236, 244, 246
between towns expenses of, how borne. . . . . . . . . . . . . . . . . . . . . . 40, 243, 244
apportionment of expenses when intersected by county line . . . . . . . . . 60
proceedings by commissioner of highways to secure joint action of
towns liable for construction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 246
joint liabilities of towns for construction and maintenance of . . . . . . . . 41
over stream dividing towns, order of court compelling building, etc.,
duty of commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
construction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
wooden, advantage of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
iron, Value of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
wooden piers for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
penalty and notice on, for fast riding or driving. . . . . . . . . . . . . . . . . 44, 226
construction and maintenance of, on newly laid out highway . . . . 244, 245
construction and repair of county. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
when to be constructed and maintained by joint expense of towns. . . . 247
duty of commissioner of highways in determining whether the
expenses of, are town or county charge . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
piles for abutments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
when commissioner of highways not liable for refusal to build . . . . . . . 243
criminal liabilities for injuries to . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 143, 250
when defective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
when commissioner of highways not liable for neglecting to repair. . . . 243
INDEX. # 337
, Buildings: PAGE.
when town not liable for defects in................................. . 243
when town not liable for failure to build. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
proceedings to lay out highway through. . . . . . . . . . . . . . . . . . . . 31, 162– 167
limitations upon laying highway through... . . . . ºr e º 'º º sº ºp 4 e º 'º © c e º e º º 31, 163
Burying grounds:
laying out highways through. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 163
C.
Carriages:
liabilities of owners for damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
turn to right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
What are. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 222
Cattle, right to drive in highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Cemetery lands, limitations upon laying highways through . . . . . . . . . . . . . . 163
Center of road, what is . . . . . . . . . . . . . . . . . . e tº e º 'º e g º e º 'º e º 'º e g º e s tº s vs. º e º 'º e s e º 'º 222
Certificates:
filing of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 151
service of certificate of commissioner of highways in favor of laying
out through orchard . . . . . . . * * * * * * * * * * * * * g º e º º e º e º 'º e º & ºr tº e º 'º º as tº e º ºr at e 166
of anticipation of tax for sidewalks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 126
Claims, town may audit certain, without action. . . . . . . . . . . . . . . . . . . . . . . . . . 252
Clay road, description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Code of Civil Procedure, provisions relating to strays . . . . . . . . . . . . . . . . . . . 98
Commissioners to consider differences of highway officer as to laying out
of highways:
proceedings of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 191
decision of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 191
Order confirming, modifying or vacating report of... . . . . . . . . . . . . . 33, 192
papers to be filed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 192
Commissioners to widen highways:
proceedings by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
notice to board of Supervisors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Commissioners of highways:
ballots for, how designated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
election of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 196
tie vote at annual election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
term of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 196
oath of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
undertaking of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 198
undertaking, where filed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • & e º is º º 55
qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
compensation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 203
treasurer of. . . . . . . . . . . . . . . . . tº tº e º 'º e º e º 'º º e º 'º º 0 & 0 tº tº 9 e º u e º e s e o e º , a e º e 4, 203
338 INDEX.
Commissioners of highways—(Continued). PAGE.
holds over until successor qualifies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Vacancy in office of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
purpose of first meeting of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
resignation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
number of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 197
change of number of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . * * * * * * * 197
Compensation for repairing unsafe toll bridge. . . . . . . . . . . . . . . . . . . . . . . . 250
general powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 205
powers of one commissioner. . . . . . . . . . . . . . . . . . . . . . . . . § e º 'º º ve e s & © tº e 4, 205
powers of majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
first meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 115, 206
report of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 207
indictment of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
may administer oath. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
delivery of books to Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 203
may alter State roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
assessment of labor by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 117
assessment of labor by, where assessors have Onitted names . . . . . . 16, 118
expenditure of money raised for highway purposes by . . . . . . . . . . . . . . . 74
may authorize construction of sidewalks and anticipation of tax for, 16–18
125
may authorize planting of trees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
123
may authorize water pipes in highways. . . . . . . . . . . . . . . . . . . . . . . . . 8, 232
may cause unsafe toll bridge to be repaired . . . . . . . . . . . . . . . . . . . . . . . 8, 249
may acquire road machines, Scrapers and plows. . . . . . . . . . . . . . . . . . 6, 128
erection of mile stones and guide boards. . . . . . . . . . . . . . . . . . . . . . . . . . 5, 139
stone crushers, purchase of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 128
list of non-resident lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 116
extraordinary repairs by . . . . . . . . . . . . . . . . ......................... 7, 136
raising of additional tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 139
penalties against, for failure to collect penalties .................. 12, 213
entry upon lands adjoining streams, damages from. . . . . . . . . . . . . . . . 5, 142
to expend highway money's . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 205
require overseers to warn persons liable to labor . . . . . . . . . . . . . . . . . . 5, 205
to appoint overseers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 114, 205, 209
assign inhabitants to districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 205
divide town into highway districts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 113
repair of highways and bridges by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 205
care and superintendence of highways ........................... 4, 205
duties as to forest fires . . . . . . . . . • * * * * * * * * * * * * * * * * * * * * * * * * * c e o e a e e 56, 207
are fence viewers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 206
When to remove fences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 172
to notify owner to remove fences, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 172
to file papers in proceedings to lay out highway through orchard. . . . . 164
to cause survey of highway through orchard........................ 164
survey to be made on laying out . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 149, 170
when to cause highways to be surveyed and recorded............. 63, 141
INDEx. 339
Commissioners of highways — (Continued.) PAGE.
to cause highways to be described and recorded. . . . . . . . . . . . . . . . . . . 4, 205
to file and reeord papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 151, 174
may lay out road with consent of owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
jurisdiction limited in proceeding to lay out highway. . . . . . . . . . . . . . . . 148
duty in relation to highways created by prescription. . . . . . . . . . . . . . 35, 146
proceedings on dedication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 147, 148
duties on application to lay out private road. . . . . . . . . . . . . . . . . . 37, 176–179
when order to lay out highway final . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 162
service of certificate in favor of laying out highways through orchard, 166
certificate of laying out highway upon order of general term. . . . . . . . 167
description of abandoned highway to be filed. . . . . . . . . . . . . . . . . . . . 35, 183
obstructions and encroachments, duty in relation to . . . . . . . . . . . . . . 36, 236
proceedings where commissioners of different towns disagree about
highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 192
proceedings where commissioners of different towns differ about
improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 192
to record highway on town line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 146
when to alter state roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143, 189
when may cause bridge to be rebuilt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
when not liable for failure to construct or repair a bridge . . . . . . . . . . . 243
to institute proceedings for repair of joint bridge. . . . . . . . . . . . . . . . 41, 246
statement of repairs to bridges
report to town board as to building of bridge between two towns . . . . 42
duty of, upon order of court ordering bridge to be built over streams
dividing towns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
judgment against, when town charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
actions on contract of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
town liable for neglect of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
what constitutes neglect of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 253
recovery against, by towns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
acts for which town liable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
liable for trespasses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
liability for defective highways and bridges . . . . . . . . . . . . . . . . . . . . . . . . 251
actions by, for injuries to highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
actions against, by towns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Commissioners to lay out, etc.:
proceedings on application for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
appointment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 154
jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168, 169
consent of owner necessary to give jurisdiction. . . . . . . . . . . . . . . . . 163, 164
notice of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
notice of meeting necessary to give jurisdiction. . . . . . . . . . . . . . . . . 156, 168
qualifications of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 154
vacancy, how filled. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 154
compensation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
duties of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 155
proceedings of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 156
340 INDEX.
h
Commissioners to lay out, etc. — (Continued). PAGE.
adjournment of proceedings by... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
appointment of time and place of meeting . . . . . . . . . . . . . . . . . . . . . . 29, 155
to examine witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 157
to examine proposed highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 156
to assess damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 157, 168
may adjourn proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 157
may issue subpoenas. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 157
may administer oaths. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 157
keep minutes of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 157
to reduce to writing Oral evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 157
notice of meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 155
Service of notice of meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 156
decision in favor of application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 157
decision denying application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 159
to make duplicate certificates of decision. . . . . . . . . . . . . . . . . . . . . . . . 29, 157
to file certificate of decision and other papers. . . . . . . . . . . . . . . . . . . . 29, 157
decision, when deemed final. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 161
final determination, how carried out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
proceedings on motion to vacate or modify decision of....... 30, 161, 162
proceedings on motion to confirm decision. . . . . . . . . . . . . . . . . . . . . . 30, 159
to file orders and papers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
costs upon motion to confirm report of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Commutation:
allowance of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 130
Overseer can not commute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 210
penalties for neglect to Commute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 131
Compensation:
of commissioners of highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 203
of commissioners to lay out, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
of Commissioners of highways in proceedings to lay out private roads, 38
203
of overseers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 210
of jurors in proceedings to lay out private roads................. 38, 179
Consent of owner:
When necessary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 163
laying out highway with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
proceedings on refusal of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165.
Constitution:
provisions in relation to private roads ............................... 67
provisions in relation to laying out highways ........................ 67
constitutional oath. . . . . . . . . . . . . . . . . . . . . . . . . . . . ................. 68, 155
oath necessary to give jurisdiction ................... .............. 169
Contracts, actions by and against towns on .............................. 254
Corporations, right to use highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
INDEx. 341
Costs: PAGE,
by whom paid . . . . . . . . . . . . . . & © tº º is tº º sº tº º e º 0 º e º 'º e º 'º dº e e º 'º e º & © tº e º e º 'º º 32, 172
audit of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 173
in proceeding to lay out private road . . . . . . . . 4 & 9 º' g º e º e º 'º º º ºr º e º e º & 39, 182
on re-assessment of damages . . . . . . . . . . . . . . . . . & G e º ºs e º 'º e º ºr e º ºs º e s & & 32, 173
of motion to confirm decision of commissioners to lay out, etc... . . 45, 161
costs on motion. . . . . . . . . . . * G - I e g º ºs º & 7 tº º 'º º tº e º & © tº & ſº e º e º gº ºn e º e º ºs e s - tº 45, 174
County highways:
application to lay out, etc. . . . . . . . . . . . . . . . . . . * * * > s is a s is e º e º a º º is a ºn tº e º e s 184
order laying out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
notice of application to lay out . . . . . . . . . . . . . . . . . . . ................... 185
proceedings to lay out . . . . . . . . . . . . & a dº º & 4 & ſº tº a tº a tº e º ºs e º e º ºs e º s º ºs e º e 184, 185
expense of laying out . . . . . . . . . . . . . . . . * * * * * * * * * * * * * s tº e o e e a s e e º 'º e º e s a e 184
County roads:
what are, working of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19–21, 112
system discussed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
law in relation to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
expense of working . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 112
indebtedness for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
overseers to be retained under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
County engineer, qualifications of....................................... 320
Convexity of roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276, 303
Convict labor, employment of, on state roads . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
Corduroy roads, described . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
County system, working highways under. . . . . . . . . . . . . . . . . . . . . . . . . 19–21, 112
Crusher, stone, description of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Culverts, how constructed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
D.
Damages:
action for, when commenced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
assessment of, on laying out, altering or discontinuing highway. . . . . . 29
assessment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
audit of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 173
audit without action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 252
claim for, to be presented to Supervisor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
costs on reassessment of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
fixed by agreement . . . . . . . . . . . . . . . . * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 28, 170
how collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 173
in certain cases, how estimated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 158
jury to assess in proceedings to lay out private road. . . . . . . . . . . . . . 37, 176
to whom allowed. ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
when to be paid in proceedings to lay out private road . . . . . . . . . . . 38, 181
Dampness, to be avoided. . . . . . . . . . . . . . . . . . . . . . . . . • * * * * * * * * * * * * * * * * * * * * * 295
Day's labor, what is. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,
342 INDEX.
Dedication: PAGE.
what constitutes . . . . . . . tº t t e º e º 'º e º s º º tº & tº e º te e º s tº e º e º t e º 'º º is e ſº e º e º ºs 145, 156
acceptance necessary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
release to be filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 148
proceedings to lay out on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . * * * * * * 28, 146–151
Order laying out on . . . . . . . . * . . e. e. e. e. e. e. e s is a s e s e º s e s is a s a e e s e º s e º 'º w a 28, 147
Order laying out on to be filed and recorded. . . . . . . . . . . . . . . . . . . . . . 28, 147
fee, in whom vested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tº º ºs e º tº a º e = * * * * * * * 148
discontinuance of highways created by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Depasturing highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Description of route. . . . . . . . . . . . . . . . * * g º e º g º e º e º 'º $ tº e º ºs º ºs º º º tº t e º 'º t t e º a g º º 171
Discontinuance:
application to discontinue highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 151
value of discontinued highway to be considered in laying out private
roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 38, 180
(See establishment of highways; abandonment.)
Dirt roads:
described . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
use of scraper on. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Division lines, cost of fences along. . . . . . . . . . . . . . . . . . tº gº º q e º º tº tº e º 'º e º º 39, 172
Drainage:
different kinds of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tº º 'º e º e º e º is tº e 277
of roadbed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277, 302
Drills, rock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Drivers:
intemperate. . . . . . . . . . . . . . . . . . . . . . . . . . . . tº e º º ºs º ºs e º 'º º ſº tº º ºs º º ſº º ºi e º º 46, 227
liability of owner of vehicle for willful acts of . . . . . . . . . . . . . . . . . . . . 46, 227
Dynamite, how used in road building. . . . . . . . . . . . . * * * * * * * * * * * * * * * * * * * * * ~ * 310
E.
Electric light poles in highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Elevated railroads in highway. . . . . . . . . . . . . . . . . . e e º 'º e º is a e º a c e º ſº º is s e. e. g. s is ºr 230
Encroachments. (See obstructions.)
Engines, steam, on highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 48, 226
Establishment of highways:
how established. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
application to lay out. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 151
who may make application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
consent of town board, when necessary. . . . . . . . . . . . . . . . . . . . . . . . . . 28, 149
description of route. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
application to commissioners not necessary when land is dedicated, 28, 148
application for commissioner to lay out. . . . . . . . . . . . . . . . . . . . . . . . . . 29, 152
appointment, qualification and duties of commissioners to lay
out. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 152–159
INDEx. 343
Establishment of highways—(Continued). PAGE.
certificates of commissioners of highways on order of general term... 157
proceedings of commissioners to lay out. . . . . . . . . . . . . . . . . . . . . . . . . . 29, 155
proceedings when owner refuses consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
proceedings to lay out through Orchards. . . . . . . . . . . . . . . . . . . . . . . . . . 31, 163
proceedings to lay out through burying ground. . . . . . . . . . . . . . . . . . 31, 163
proceedings on motion to vacate or modify decision of commis-
Sioners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 161
motion to confirm decision of commissioners. . . . . . . . . . . . . . . . . . . . . . 30, 159
assessment of damages by commissioners to lay out. . . . . . . . . . 30, 157, 168
decision of commissioners to lay out. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 157
damages to be assessed by commissioners to lay out. . . . . . . . . . . . . . . 29, 168
damages fixed by agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
allowance of damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
costs, by whom paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 172
laying out highways in two or more towns. . . . . . . . . . . . . . . . . . . . . . . . . . 34
proceedings where commissioners of different towns differ as to
improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33
limitation on laying out highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 152
laying out highways on town line. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
by dedication, proceedings . . . . . . . . . . . . a * * * * * * * * * * * * * * * * * * * * 28, 146–149
owner may inclose discontinued highway. . . . . . . . . . . . . . . . . . . . . . . . 30, 158
(See County Highways; Private Roads.)
F.
Fee:
rights of owner of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ** * * * * * 217
presumptions in relation to.......................................... 218
in municipality, rights of adjoining owner. . . . . . . . • * * * * * * * * * * * * * 148, 219
Fences:
abatement for removal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 127
when to be removed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 172
cost of, where road is along division line. . . . . . . . . . . . . . . . . . . . . . . . . 39, 172
erection of, at town expense, to prevent snow blockades. . . . . . . . . . 80, 241
wire, erection of by town. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 241
Fence viewers, commissioners of highways are. . . . . . . . . . . . . . . . . . . . . . 54, 206
Ferries:
licenses for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
undertaking of person applying for license . . . . . . . . . . . . . . . . . . . . . . . . . 48
rope, appendages for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
passage on State lands to be granted by Superintendent of Public
Works. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
schedule of rates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Subject to laws and regulations by boards of supervisors. . . . . . . . . . . . . ; 66
Fires, in woods, duties of commissioners as to. . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Flagmen, at railroad crossings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 140
344 INDEX.
f
Flower, Governor: JPAGE,
extract from magazine article. . . . . . . . º º ſº º sº tº º e º º ºs º º 'º e º 'º º ºr . . . . . . . . . . . . 270
extract from message. . . . . . . . . . . . . . . . . . . . . . . . . . . © tº º tº ſº e s tº & e º ºr w is . . . . 265
Forms:
account against town for Services and material . . . . . . . . . . . . . . . . . . . . 138
additional assessment by overseer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
annual return of overseer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
application to anticipate tax, to improve sidewalks . . . . . . . . . . . . . . . . . . 125
application to lay water-pipes in highways. . . . . . . . . . . . . . . . . . . . . . . . . . . 233
appointment of overseers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 209
appointment to fill vacancy in office of highway commissioner . . . . . . . 202
certificate of audit of extraordinary expenses. . . . . . . . . . . . . . . . . . . . . . . . 137
Certificate of sidewalk tax anticipated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Consent of town board to extraordinary repairs . . . . . . . . . . . . . . . . . . . . . . 136
division of town into highway districts . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
application for change of system. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
indorsement on certificate of highway tax anticipated. . . . . . . . . . . . . . . . 126
lists of persons liable to labor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
list of non-resident lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
non-resident's appeal to county judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
notice of appointment to commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
notice to overseer of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 115, 209
notice to non-resident of assessment of labor . . . . . . . . . . . . . . . . . . . . . . . . 130
notice to resident agent of non-resident to perform labor . . . . . . . . . . . . 129
notice to remove fallen tree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
notice to cut weeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
notice to abate obstruction or encroachment. . . . . . . . . . . . . . . . . . . . . . . . . 237
notice that highway is obstructed ............................... ... 134
oath of Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
notice to corporation to perform labor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Order granting permission to plant trees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Overseers lists of unperformed labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
permission of commissioners to anticipate sidewalk tax . . . . . . . . . . . . . . 126
permission to lay water-pipes in the highway. . . . . . . . . . . . . . . . . . . . . . . . 233
request of commissioners to convene town board to audit extraor-
dinary repairs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
report of commissioners to first meeting of town board. . . . . . . . . . . . . . . 207
report of commissioners to second meeting of town board. . . . . . . . . . . 208
report of overseers of amount expended in cutting weeds . . . . . . . . . . . . 240
resignation of Commissioner of highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
road Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
undertaking of commissioners of highways . . . . . . . . . . . . . . . . . . . . . . . . . . 198
undertaking of treasurer of commissioners of highways . . . . . . . . . . . . . 204
dedication of land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
release of damages on laying out highway. . . . . . . . . . . . . . . . . . . . . . . . . . . 147
Order laying out highway on release by owner. . . . . . . . . . . . . . . . . . . . . . . . 147
Consent of town board to lay out highway. . . . . . . . . . . . . . . . . . . . . . . . . . 150
release of damages, for consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
*
INDEX. 345
Forms—(Continued). PAGE.
order laying out on consent of town board. . . . . . . . . . . . . . . . . . . . . . . . . . 150
application to lay out highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 150, 151
application to alter highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
application to discontinue highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
petition for appointment of commissioners to lay out highway. . . . . . . . 153
order appointing commissioners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
notice of appointment of Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Constitutional oath of highway officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
notice of meeting of commissioners to lay out highway. . . . . . . . . . . . . 155
affidavit of Service of notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
subpoena to witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
oath to witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
certificate of commissioners to lay out, in favor of application . . . . . . . 158
certificate of commissioners of highways laying out highway . . . . . . . . . 161
certificate of commissioners denying application to lay out . . . . . . . . . . 159
Order confirming decision of commissioners. . . . . . . . . . . . . . . . . . . . . . . . 160
notice on motion to confirm decision of commissioners. . . . . . . . . . . . . . 160
notice of motion to vacate or modify decision of commissioners . . . . . . 161
Order vacating or modifying decision of commissioners . . . . . . . . . . . . . 162
certificate of commissioners of highways laying out highways through
orchards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
consent of owner in proceedings to lay out highway through orchard. 164
certificate of commissioners of highways in favor of road through
orchard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
order of county court laying out highway through orchard. . . . . . . . . . 166
order of general term confirming order of county court . . . . . . . . . . . . . 167
certificate of commissioners of highways laying out highway on order
of general term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
application to lay out private road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
notice of selection of jury in proceedings to lay out private road . . . . . 177
summons to jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
oath to jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Verdict of jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
certificate laying out road . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
certificate of abandonment of highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
application to lay out county highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
notice of application to lay Out county highway . . . . . . . . . . . . . . . . . . . . 185
affidavit of Service in proceedings to lay out county highways . . . . . . 185
Order laying Out county highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
decision of commissioners appointed to consider differences as to lay-
ing out highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
certificate to county court of fact of disagreement as to highways by
officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
notice of meeting of officers of different towns disagreeing as to laying
out highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
order appointing commissioners to consider differences of highway
officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
346 INDEX.
Forms — (Continued). PAGE.
application for laying out highways upon town line. . . . . . . . . . . . . . . . . . 194
complaint of unsafe toll-bridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . * * * * * * 249
notice of commissioners of highways to towns liable to aid in construc-
tion or repair of bridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
notice to owner or agent that toll-bridge is unsafe. . . . . . . . . . . . . . . . . . . . 249
statement of claim for damages in action against town. . . . . . . . . . . . . . . 255
Funds, when commissioners not liable to make repairs to bridges for want
of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
G.
Garden, proceedings to lay out highway through. . . . . . . . . . . . . . . . . . . . 31, 162
Gas pipes, in highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Good Roads, magazine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Grade of roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
Gravel:
taking of, to make repairs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Overseers, authorized to acquire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 131
how applied to roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
Gravel roads, described. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Granite, as covering for macadam roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Guide boards, erection of . . . . . . . . . tº e s e º ºs º le s tº ºn tº gº tº e º 'º tº * * * * g e º e º ſº º 'º w & $ tº a 5, 139
Guide posts, injury to, a misdemeanor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 139
H.
Highway districts, creation by Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.
Highway labor, assessment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 116, 117
assessment for opening obstructed highways.... ................ 11, 134
number of days to be performed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 117
to be affixed to lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 118
persons liable to assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 116
personal property, where assessed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 117
real property, where assessed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 117
assessment on persons omitted from lists. . . . . . . . . . . . . . . . . . . . . . . . 15, 120
reassessment, if not performed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 120
commissioners to require overseers to warn persons to perform. . . . . . . 5
notice to perform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
notice to non-resident to perform. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 129
what constitutes a day's work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 129
new assessment of, when insufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 122
assessment for unperformed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 132
overseer may excuse neglect to perform. . . . . . . . . . . . . . . . . . . . . . . . . . 23, 132
when tenant may deduct from rent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 123
on highway laid out for One year. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 120
credit on private road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 120
commutation for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,
130
INDEX. 347
Highway labor—(Continued). PAGE.
teams and implements for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 130
substitutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 131
penalties for neglect to work or commute. . . . . . . . . . . . . . . . . . . . . . . . 23, 131
what corporations are to be assessed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
rights in connection with performing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135.
collection by boards of supervisors for unperformed. . . . . . . . . . . . . . 24, 134
Highway law, short title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Highway money, assessment and collection of . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Highway officers, have no right to change water course. . . . . . . . . . . . . . . . . 135.
Highways:
legislature not to pass local bill for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
description of those laid out for twenty years. . . . . . . . . . . . . . . . . . . . . . . . 4.
by use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
limitation upon laying out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 162
laid out for year, working of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 120
description and record of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 206
Surveys and records of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
may be constructed in accordance with established grade . . . . . . . . . . . . 135
through unimproved land, working of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
laying out by County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Survey and record of County. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63.
upon town line, laying out of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 194
final determination as to, upon town line . . . . . . . . . . . . . . . . . . . . . . . . 35, 195
in counties of more than 300,000 acres unimproved land . . . . . . . . . . 64, 142
disagreement of officers of different towns as to . . . . . . . . . . . . . . . . 32, 189
certificate of, to County Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 190
in two or more towns, laying out, altering, etc. . . . . . . . . . . . . . . . . . 34, 193
board of supervisors to apportion expenses between towns. . . . . . . . . . . . 18.
papers relating to laying out, altering, etc., where filed . . . . . . . . . . . . . 44
widening, washed by storm, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83.
commissioners appointed for widening, their duties, etc. . . . . . . . . . . . . . 84
alteration of, in incorporated villages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76.
damages for change of grade in villages. . . . . . . . . . . . . . . . . . . 76, 77
money raised for, to be paid to commissioners . . . . . . . . . . . . . . . . . . . . . 73
application of money raised by town for . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
money, how expended by commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . 74
money, authorized to be borrowed by board of supervisors. . . . . . . . . . . 140.
raising of, by board of Supervisors for highways . . . . . . . . . . . . . . . . 187
county, when to maintain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
assessment for, how collected in counties of over 300,000 inhabitants, 78,
142
neglect as to, on part of commissioners of highways. . . . . . . . . . . . . . . . 252
overseers to keep in repair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
actions for injuries to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . & e º º ſº tº e g º a 9, 251
repair, extraordinary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 136
defective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
348 INDEX.
Highways — (Continued). PAGE,
liability of towns for defective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 251
drivers, intemperate upon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
fallen trees, removal of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
loose stones in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
wire fence, when built to prevent snow blockade. . . . . . . . . . . . . . 80, 241
obstructed, opening of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 134
license fees, applicable to maintenance of . . . . . . . . . . . . tº ſº e º º ºn tº a tº $ tº a tº tº $ 139
flagmen and sign-boards at railroad crossing. . . . . . . . . . . . . . . . . . . . . . . . . 140
carriages to turn to right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
horses left untied in. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
engines, steam traction on. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 226
horses running on, unlawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 226
injury to, liability for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
a misdemeanor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 88, 143
nuisances in, unlawful. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
noisome or unwholesome substances in . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 220
depasturing of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
materials in, belong to owner of fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
rights in general, of owner of fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
contiguous owner, title of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
abandoned, revert to Original owner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Occupation of, for business and building . . . . . . . . . . . . . . . . . . . . . . . . 219, 235
rights of public to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 221
of turnpike and plank-road corporations . . . . . . . . . . . . . . . . . . . . . . . 234
of water works corporations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 233
telegraph and telephone limes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
elevated roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
rights of street railroad to use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
of steam railroad . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 229
pipe-line corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 231
corporations for public purposes. . . . . . . . . . . . . . . . '• • * * * * * * * * * * - - - - 228
agreement for use of, by Corporation, how made. . . . . . . . . . . . . . . . . . . . . '72
gas, water and sewer pipes in. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 232
intersection of, by railroads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 229
crossed by railroads and pipe lines, proceedings. . . . . . . . . . . . . . . . . . . . . 71
bicycles and tricycles, use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
foot travelers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Cattle driven in. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
adjoining land, when public may use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
additional servitudes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
(See Establishment of Highways; Public; Abutter; Owner of Fee; Travel-
ers; Law of Road; and Roads.)
Horses:
not to be left without being tied . . . . . . * * g e º ºs e e g º 'º e º 'º º ſº º is de C & . . . . 46, 228
running of, upon highways, unlawful. . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 226
Hollows in roads to be avoided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
INDEX. 349
I. PAGE.
Improvement of highways, differences of officers as to. . . . . . . . . . . . . . . . 33, 192
Indictment :
of commissioners of highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
of overseers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
Intemperate drivers not to be engaged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 227
Iron or steel bridge not to be built until approved of by civil engineer..... 246
Irwin, Henry C. E., on macadam road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
J.
Johnson, Chapman L., C. E., article by. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Judgments:
against commissioners, audit by town board. . . . . . . . . . . . . . . . . . . . . . . . 9
against town. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252, 256
Jury in proceedings to lay out private road. . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 178
L.
Labor. (See Highway Labor.) *
Labor System of working highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109, 321
Law of road:
carriages to turn to right... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
what included in term carriages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
only applies to Carriages meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
not inflexible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
“Seasonably turn” means what. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
what is center of road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
does not apply to Street cars. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . & v e º º º gº 223
exception as to ambulance, fire engine, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 224
when liability incurred for violation Of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
(See Travelers.)
Legislature, not to pass private law laying out or opening highway . . . . . . . 67
License for ferries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
License fees, certain, applicable to maintenance of highway. . . . . . . . . . . . . . 139
Liability of towns and commissioners for defective highways. . . . . . . . 251, 253
Limestone, for covering of macadam road. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Limitations, on laying out highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 162
Lists:
of persons liable to labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 115
copies to be delivered to overseers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 120
names omitted, to be inserted by overseer . . . . . . . . . . . . . . . . . . . . . . . 15, 120
of persons refusing to work, penalty for not providing . . . . . . 24, 133, 213
Location of country roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273, 302
350 INDEX.
M. PAGE,
Macadam, John Loudon. . . . . . . . tº e º e º e º te q ^ . . . . . - - - - - - - - - - - - - - - - - - - - - . . . . . 262
Macadam road:
description of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tº gº º e º ſº g º º tº ſº * * * * * * * 262
maintenance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
suggestions regarding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
construction, errors regarding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
stone Crusher . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e e º 'º e º 'º e º e s ºn tº e º e º 'º a tº 288
bluestone as covering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tº e º º tº º e º 'º e º a tº s º 288
trap rock for covering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
limestone for covering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
granite for covering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Slate rock for covering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e e º a tº e º e º ſº e º 'º e º 'º tº 287
stone quarries near . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
built by county . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
construction of, article by Henry Irwin, C. E. . . . . . . . . . . . * * * * g º e º e º 'º e > 284
preparation of roadbed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
foundation for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
Width of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284, 292
in England . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tº 9 e º e g g º e º e º is a e º e s s e s is 262
thickness of . . . . . . . . . . . . . . . . . . . . . . . . . . . ** * is e º e tº e G & e s is e º ºs e e º 'º ºn a e º a s tº s 291
material for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287, 293
convexity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
cost . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304
TMachinery, road making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292, 305
TMaterial for surface of roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
Maintenance of roads, suggestions regarding . . . . . . . . . up º e < * * * e o 'º e º ºs e s a e s is 295
Mile-board, injury to punishable . . . . . . . . . . . . . . . . © º e º 'º Q tº tº ſº º & © e g º ºs e e a e e º a e 88
Mile-stones:
erection of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 139
injury to, a crime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
1Misdemeanor, public officer acting without qualifying, guilty of... . . . . . . . 68
Money system, working highways under . . . . . . . . . . . . . . . . . . . . . . . . . 19, 111, 322
Money, highway, to be paid to Commissioners. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Monuments, to be erected by overseers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 211
Motion:
to vacate or modify decision of commissioners . . . . . . . . . . . . . . . 30, 161, 162
to confirm decision of commissioners . . . . . . . . . . . . . . . . . . . . . . . . 30, 159, 160
costs of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 174
McNeil, Sir John, assertion as to grades . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
N.
National system of highways, appointment of officers for . . . . . . . . . . . . . . . . 316
National highways:
of Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
expense of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315
not needed for military purposes. . . . . . . . . . . . . . . . . . a tº gº e º e º 'º e º 'º e º ºs º ºn tº ſº º 315
Notice: PAGE.
to perform labor............ s ſº g s & e g º ºs e g g g g º e º ºs e º º ºs º is º g & s tº e º is 4 º' & 4 ºn 21, 129
to non-residents to perform labor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 129
to cut weeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 239
service of, on commissioners appointed to lay out highways. . . . . . . . . . 154
to commissioners of highways to build bridge . . . . . . . . . . . . . . . . . . . . . . . 248
to commissioners, of unsafe toll bridge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Non-residents:
list of lands of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 116
appeal to county judge by non-residents. . . . . . . . . . . . . . . . . . . . . . . . . . 15, 121
Nuisance:
maintaining, a crime. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 220
person maintaining liable to person injured. . . . . . . . . . . . . . . . . . . . . . . . . 238
who may abate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
when obstruction in highway is . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
length of time does not legalize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
O.
‘Oath:
commissioner of highways fo take . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 197
failure to take, misdemeanor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
necessary to give jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
filing of, acceptance of office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
commissioner of highways may administer . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Commissioners to lay Out, may administer . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
town officers may administer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
(See Constitutional Oath.)
Obstructions:
who may abate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
in highways, nuisances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
of Sidewalks, temporarily. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 236
general doctrine as to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
penalty for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
actions by towns for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Officers. (See Commissioners of Highways; Overseers of Highways.)
‘Order laying out highway, when final . . . . . . . . . . . . ....................... 28
Orchards:
proceedings to lay out highways through . . . . . . . . . . . . . . . . . . . . . . . 162–167
limitation upon laying highway through ......................... 31, 163
Overseers of highways: s
appointment of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 114, 209
term of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
compensation of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 210
Vacancy in office of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 210
annual report.of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .............. 24, 213
352 INDEx.
Overseers of highways— (Continued). PAGE.
general duties of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 211
subject to order of commissioners ................................... 211
penalty for refusal to serve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 210
penalty for refusal to render annual account. . . . . . . . . . . . . . . . . . . . . . . . . 12
indictment of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
acquisition of gravel by... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 131
must provide suitable pathway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
must keep roads in repair without special instructions. . . . . . . . . . . . . . . . 211
need not repair until funds are provided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
duty to repair not dependent on direction of commissioners. . . . . . . . . . . 211
duty as to repairs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
to cause weeds to be cut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 25, 211, 239
erection of monuments as boundaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 211
removal of stones by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 211
to open obstructed highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 134, 241
removal of loose stones. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
penalty against. . . . . . . . . . . . . . . . . . * g g g º º e º 'º we e tº a tº º dº º ºs e º ſº e º 'º e º 'º e º e º ºs 11, 212
penalty for refusal to provide list of persons refusing to work, 24, 133, 212
list of persons liable to labor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 115
insertion of names omitted from lists of persons liable to labor. . . 15, 120
what deemed acceptance of Office by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 210
new assessments by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 122
to give notice to labor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 129
to give notice to non-residents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 129
may require teams and implements. . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 130
to notify commissioners of amount expended in cutting weeds. . . . 26, 239
Owner of fee:
rights of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
presumptions in relation to Ownership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
may sell fee to highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
may maintain actions for trespass. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
trees in highway, belong to... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
fruits and nuts in highway, belong to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
P.
Papers:
where filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 174
who may demand. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Pathmaster. (See Overseer of Highways.)
Penalties:
how recovered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 47, 213
collection by individual... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 213
against Overseers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 212
for refusal to serve as overseer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 210
for refusal of overseer to render annual account . . . . . . . . . . . . . . . . . . . . . 212
56
for refusal to deliver books and papers to successor. . . . . . . . . . . . . . . . . . .
* INDEx. 353
Penalties — (Continued). PAGE,
for refusal of overseer to providelist of persons refusing to work, 24, 133, 212
against commissioners for refusal to prosecute for penalties....... 12, 213
for neglect to work or commute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 131, 132
for failure to cut weeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 239
for obstructions or encroachments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 237
for falling trees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 238
for neglect to work, when assessed to open obstructed highways... 11, 134
for refusing to abate toll for watering trough..... * - 4 is g º ºs º g º 4 g º e º ºſ º de 75
Piers for wooden bridges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Pile driver, description and use of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Piles for bridge abutments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Pipe line corporations, right to use highway. . . . . g g g g g º e º e º s e º 'º e º us $ 9 . 72, 231
Plank roads:
description of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
as toll roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .263
abatement of toll for watering trough . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Plank road corporations, right to use highway. . . . . . . . . . . . . . . . . . . . . . . . . . 234
Foorhouse exempt from assessment for highway labor . . . . . . . . . . . . . . . . . . . 78.
Potter, Isaac B., article by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Prescription:
definition of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
highways created by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 146
what constitutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
record of highways created by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
private road created by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Private roads:
definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
how created. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
by necessity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
by prescription. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
how created by grant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
application for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 67, 176
jury to determine necessity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 67, 176
jury to assess damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 176
service of copy of application and notice . . . . . . . . . . . . . . . . . . . . . . . . . 37, 177
selection of jurors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 178
jury, place of meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 178
jury, proceedings of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 179
Selection of additional jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 179
verdict of jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 180
value of highway discontinued . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 180
papers to be filed and recorded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 180
damages to be paid before opening road. . . . . . . . . . . . . . . . . . . . . . . . . . 38, 181
fees of jurors and commissioners of highways. . . . . . . . . . . . . . . . . . . 38, 179
45
354 INDEX.
Private roads — (Continued). PAGE,
motion to confirm, vacate or modify decision of jury. . . . . . . . . . . . . . 38, 181
decision of jury, when deemed final. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 181
when Second application for, may be made. . . . . . . . . . . . . . . . . . . . . . . 39, 182
costs of proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 182
costs of new hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 182
purpose for which used. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 182
abandonment of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176,
Credit for work on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 120
injury to, a misdemeanor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Profits of farmer, affected by poor roads . . . . . . . . . . . . . . . tº e º e º e º e º e s tº e º 'º a 324
Public:
right to use highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 221, 229, 234
when may use adjoining land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
R.
Railroads:
intersection of highway by... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 229
sign boards and flagmen at crossings . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 140
right to use highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
yards of, highways through. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Bebates:
generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
for trees, planting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 123
for sidewalks.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 125
for watering troughs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 127
for removal of fence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 127
for maintaining street lamps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 127
for use of wagon tires four inches in width . . . . . . . . . . . . . . . . . . . . . . . 26, 126
Release:
filing and recording of, when lands are dedicated . . . . . . . . . . . 28, 148, 151
amount of damages, where consent of town board necessary. . . . . . 28, 149
151, 170
Resignation of commissioners of highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
JRepairs:
when extraordinary may be made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 136
auditing expense of extraordinary................................. 7, 136
{Reports:
of commissioners of highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 207
overseers' annual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 213
Foads:
location of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . * * * > * > * > * ~ * : * * > * * * * * * * * g º e º º is 302
county, advantages of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
INDEX. 355
Roads — (Continued). PAGE.
maintenance and repair of, suggestions regarding. . . . . . . . . . . . . . . . . . . . 295
material for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
width of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276
convexity of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276, 303
drainage of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277, 302
grade of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . tº º e º 'º e o º g º g g g g g º º & e º a tº a º 274
macadam. (See Macadam.)
Corduroy, described . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
plank, described. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
dirt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
clay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Sand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
gravel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
Roman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
good, benefit of to farmers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
defect of, upon profit of farmer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
good, increase value of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
good, social effect of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
ornamentation of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . * * * * * * * * * * 329
poor, effect of on church and school attendance. . . . . . . . . . . . . . . . . 327, 328
(See Highways.)
Road dampness to be avoided . . . . . . tº g º g g g º ºs s ∈ e º e º e º 'º e º 'º º is º e º is e e * . . . . . . 295
Road improvement:
associations for. . . . . . . . . . . . . . . . . . tº e º 'º e º 'º º e & gº tº ſº e º º tº gº e ºs º ºs e º is gº ºn is is a s & E tº 264.
agitation for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
article in relation to by Chapman L. Johnson . . . . . . . . . . . . . . . . . . . . . . . . 300
Road making, common sense in, article by Igsac B. Potter................ 291
Road machines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 128, 292, 305
Roller, horse, steam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307, 308
Ruts in roads . . . . . . . © e º e º a tº º º tº º º º t e º tº t e º º s tº s a tº ſº tº e s e g º e s is e º ſº tº e º s - tº º is a e s is 295
S.
Sand road. . . . . . . . . . . . . . . . . . tº a s \ { * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 282
Scraper, wheel, description and use of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
drag, how made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
Sewer pipes in highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Shaler, Professor, on macadam roads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Sidewalks, rebate of highway tax for. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 125
anticipation of tax to construct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 125
obstruction of, temporarily. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 235
Sign boards at railroad crossings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 140
Slopes of banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
how protected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Soldiers' monuments associations, limitation upon laying highway through
lands of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Snow, in highways, removal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 134, 241
erection of fences to prevent blockade of... . . . . . . . . . . . . . . . . . . . . . . . . . 241
State roads, authorization of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
356 INDEX.
State roads-— (Continued). PAGE.
board of supervisors may authorize commissioner of highways to
alter . . . . . . . . . . . . . . . . . . . . . . . s e e º 'º e a r * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 189
System of, discussed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
bill for providing for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
objections to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
Stones in highways, removal of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 211, 238
Stone crushed by hand, value of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
Stone crushers, how acquired; use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0, 128
custody of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 128
when village may use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 128
description and use of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289, 309
cost and capacity of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
how purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
Strays upon highways, provisions relating to . . . . . . . . . . . . . . . . . . . . . . . . . 90–103
Streets outside of city limits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Street lamps, abatement for maintaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 127
Street railroads, when may use highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
one may drive along. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Substitutes for highway labor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 131
Supervisors. (See Board of Supervisors.)
Superintendent of public works to lease right of passage to ferries over
State lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Sureties, liability of on undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 199
Survey of highways to be made on laying Out . . . . . . . . . . . . . . . . 28, 147, 149, 170
to be incorporated in Order laying out . . . . . . . . . . . . . . . . . . . 28, 147, 149, 170
filing and recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 147, 149, 170
of highways through orchardi, * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * e e s - e. 164
cost of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 149
Systems of highway construction and maintenance . . . . . . . . . . . . . . . . . . . . . . 314
Systems of taxation, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 111
money, working highways under. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 111
change of, by town. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 112
County System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19–21, 112
Systems of working highways, labor System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
money System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . © tº e º 'º e s º ºs e e s a e º 'º a 111
County System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . tº e s 6 & e º 'º e º e º 'º g tº e s tº e º 'º e º s 112
T.
Taxes, for highway purposes:
amount of raised in State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271
appropriation of certain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
when additional tax may be raised . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 139
in counties of over 300,000 inhabitants, how collected. . . . . . . . . . . . . . . . 78
exemptions of certain institutions from . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Taxation, Systems of defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 110
Teams, may be required by Overseers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 130
Telegraph and telephone lines, right to use highway. . . . . . . . . . . . . . . . . . . . . 231
INDEx. - 357
. - PAGE.
Telford, Thomas...................... 4 & e g g g g º & e º 'º e e g º º is a ſº 4 tº º e º sº 4 & 4 ... . 262
Telford road, how constructed .......................................... 262
Tenant, when may deduct assessment from rent. . . . . . . . . . . . . . . . . . . . . . 15, 123
Tire, proper width of ............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Tire, wide, prevent ruts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
advantages of to highway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
objection to use of............ ... s is a s s a e s is a s e s is is e º e º s. s is º e º as is e s = e º e º ºs s ºf 312
adjustable. . . . . e º º is sº e º sº e º 'º º is * * * * * * @ gº is is tº tº sº tº tº £ 4, & e º 'º e º º: - - - - - - - - - - - - - - - - 313
Toll bridges, regulations of, rates by boards of Supervisors. . . . . . . . . . . . . . . 64
duty of commissioner of highways upon complaint. . . . . . . . . . . . . . . . . . 249
commissioner of highways to repair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
owner or agent to repair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Toll roads, monopoly of... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
Towns, liability of, for defective highways and bridges. . . . . . . . . . . . . . . . 9, 251
how relieved from liability. . . . . . . . . . . . . . - - - - - - - - - - - - - - - - - - - - - - - - - - - 252
not liable for damages for failure to construct bridge . . . . . . . . . . . . . . . . 243
actions by, for injuries to highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 256
may recover judgment against commissioner of highways. . . . . . . . . . . . 252
supervisors may authorize to borrow money to improve highways.... 140
when may build bridges outside of boundary..................... 60, 244
when may be authorized to raise money for construction of bridges. 61, 245
authorization of, to borrow money for highway and bridge purposes... 61
186, 245
Town board:
audit of claims without action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 252
consent of, when necessary to lay out highway. . . . . . . . . . . . . . . . . . . 28, 149
Town clerk:
- time of recording papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
time of recording Survey to be noted by . . . . . . . . . . . . . . . . . . 28, 147, 149, 171
Town meeting:
election of officers at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
power of electors at . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
power to raise money for bridges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Traction engines in highway.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Trap rock, as covering for macadam road. . . . . . . . . . . . . . . . . . . . . . . . . - ºr e g º º º 288
Travelers: -
in vehicles, rights of, . . . . . . . . . . . . . . . . . . . * * * * * * * * * * * * * * * * * * * * * * * * * 222
on horseback, law of road does not apply to . . . . . . . . . . . . . . . . . . . . . . . . . 224
on foot, right of, to use of highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
right to stop. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
may drive along street railroad. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
rights of, if traveling in Same direction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
to turn carriages to the right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
358 INDEX.
#
Travelers—(Continued). PAGE,
on wrong side, risk of. . . . . . . . . . . . . . . . . . . * * * * * * * * * * * e º e º e º e º e º 'º e º & e º e 223.
when liable for not turning to right... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
driving over bridge faster than a walk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
liability for breaking bridge. . . . . . . . . . . . . •- - - - - - - - - - - - - - - - - - - - - - - - - - - - 226
(See Law of Road; Highways.)
Trees:
in highway belong to owner of fee. . . . . . . . . . . . . . © º & & © tº e º e º 'º & º 45, 135, 218
When may be used to repair highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
rebate for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 123
removal of, in highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 238
penalty for falling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 238
Treasurer of highway commissioners, undertaking of... . . . . . . . . . . . . . . 4, 204
Tricycles, rights of, to highway... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Trespass, commissioner of highway liable for . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Turnpike Corporations, right to use highway. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
Turnpike roads built by federal government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263
abatement of toll on, for watering trough. . . . . . . . . . . . tº e s tº g º t w t t t w w w tº a 75
U.
Undertaking:
of commissioners of highways . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 198
how prosecuted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
how long obligatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
failure to execute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
liability of Sureties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
of treasurer of highway Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 204
of person applying for ferry license . . . . . . . . . . . . . tº e º e º 'º . . . . . . . . . . . . . . 48
W.
Vacancy;
in office of Commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 201
in office of overseer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Verdict of jury in proceeding to lay out private road . . . . . . . . . . . . . . . . 38, 180
Vineyards, limitations on laying highways through . . . . . . . . . . . . . . . . 31, 163
W.
Wagon tires, rebate for use of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 127
Water:
surface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 254
power of commissioners in relation to overflow of. . . . . . . . . . * † - e º 'º 4, 142
highway officers cannot change natural water course. . . . . . . . . . . . 135, 254
Watering troughs:
abatement of tax for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 127
abatement of toll for, on plank roads. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
INDEX. 359
PAGE.
Water pipes in highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 232
Water-works corporation, right to use highway. . . . . . . . . . . . . . . . . . . . . . . . . . 233
Weeds:
when to be cut. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 25, 211, 239
Wide tire. (See Tire; Abatement; Rebate.)
Widening of highways. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Wheelmen, League of American, agitation by for road improvement . . . . . 264
Width of highways:
created by prescription. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
generally in regard to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 148, 171
through orchards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Woods, fire in, duties of highway commissioners as to . . . . . . . . . . . . . . . 56, 207
Work. (See Highway Labor.)
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