Highway Law (L. 1890, ch. 568), §§ 99, 100, 105.

boundary line, and such application had been denied. (Amended by L. 1901, ch. 162, and L. 1903, ch. 460, in effect May 7, 1903.)

§ 99. Highways abandoned. (C. & G. Gen. Laws, p. 1610.) Application. Ch. 311, of L. 1861, amending R. S. pt. 1, ch. 16, tit. 1, § 99, from which this section of the highway law was in part derived, was held not to be limited in its effect to such highways as were laid out within six years prior to the passage of the act of 1861, but that the act applied to a highway laid out in 1800. Townsend v. Bishop, 61 App. Div. 18, 70 N. Y. Supp. 201.

Obstruction as an abandonment.- Use of land formerly a public highway for the construction and maintenance of a private dock for a period of more than sixty years operates to extinguish the public easement therein, both under the rules applicable to adverse possession and under the provisions of the above section. City of Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488, 74 N. Y. Supp. 343.

Application to city streets. Where lands in a city have been laid out as a street but have never been used by the public and nothing has been done towards opening or working them, the above section applies, unless it appears that the city has acquired the fee to such lands. Raynor v. Syracuse Univ., 35 Misc. 83, 92, 71 N. Y. Supp. 293.

A commissioner of highways cannot file a certificate that a highway has been abandoned unless it has not been worked or used during six years last past. It cannot be declared abandoned merely because bars and gates have been placed across it for the accommodation of abutting owners. People ex rel. DeGroat v. Marlett, 41 Misc. 151, 83 N. Y. Supp. 962.

§ 100. Highways by use.

(C. & G. Gen. Laws, p. 1611.)

The use of land as a private road for a period of twenty years does not bring such road within the statutory provision that lands which have been used by the public as a highway for twenty years shall be a highway. Culver v. City of Yonkers, 80 App. Div. 309, 80 N. Y. Supp. 1034.

§ 105. How removed and liability for not removing.— The commissioner 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, including any fences, brush, shrubbery or other obstruction causing the drifting of snow, and branches of trees overhanging the travelled portion of the highway so as to interfere in any manner with persons riding or driving over said highway, 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

Highway Law (L. 1890, ch. 568), §§ 106, 110, 111.

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 commissioner may bring an action in any court of competent 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. (Amended by L. 1904, ch. 478, in effect April 28, 1904.)

Action for penalty. When, in an action in a justice's court to recover a penalty for an encroachment, the defendant does not plead title, the controversy is confined to the question whether the land encroached upon was used as a highway by the public. Such an action may be maintained although the alleged highway was never laid out or entered of record, but was established by user. Town of West Union v. Richey, 64 App. Div. 156, 71 N. Y. Supp. 871.

Notice of commencement of action. The above section does not require that notice of at least sixty days be given before the commencement of an action to compel the removal of obstructions upon public highways. A notice of fifteen days is held sufficient. Town of Smithtown v. Ely, 75 App. Div. 309, 78 N. Y. Supp. 178.

§ 106. Private road. (C. & G. Gen. Laws, p. 1614.)

Adverse use of private road.— Where an owner of a farm at a distance from a public highway has used a road over the lands of another to obtain access to his farm for a period of twenty years, it is sufficient to establish a presumption that the use of such road was adverse, in the absence of proof of objection or assertion of dominion. Hey v. Collman, 78 App. Div. 584, 79 N. Y. Supp. 778.

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§ 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 thirty-six 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. (Amended by L. 1904, ch. 109, in effect March 23, 1904.)

§ 111. Names struck off. The owners or occupants of the land may strike from the list not more than twelve names, and the applicant a like number; and of the number which remain, the

Highway Law (L. 1890, ch. 568), §§ 113, 130.

twelve names standing first on the list shall be the jury. (Amended by L. 1904, ch. 109, in effect March 23, 1904.)

§ 113. Jury to determine and assess damages. At least one commissioner and all the persons named and summoned on such jury, shall meet at the time and place appointed; but if one or more of the twelve jurors shall not appear, the commissioner or commissioners present shall summon so many qualified to serve as such jurors as will be sufficient to make the number present twelve to forthwith appear and act as such; and when twelve shall have so appeared, they shall constitute the jury, and shall be sworn well and truly to determine as to the necessity of the road, and to assess the damages by reasoning of the opening thereof. (Amended by L. 1904, ch. 109, in effect March 23, 1904.)

§ 130. When bridge is 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 water within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except 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. When such bridges are constructed over streams or other waters forming the boundary line between a city of the third class and a town, such city and town shall be liable each to pay its just and equitable share of the expenses for the construction, maintenance and repair of such bridges. Except as otherwise provided by law, a city of the third class shall be deemed a town for the purposes of this article. 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, preservation and repair. (Amended by L. 1895, ch. 416, and L. 1902, ch. 321, in effect April 2, 1902.)

Streams forming boundary lines. When the boundary line between towns is along one side of a stream, such stream forms the boundary line to the same extent as though the boundary line extended through

Highway Law (L. 1890, ch. 568), §§ 152, 154, 157.

the middle of the stream. The towns are pointly liable for the cost of repairing a bridge over such a stream. Town of East Fishkill v. Town of Wappinger, 41 Misc. 428, 84 N. Y. Supp. 1067.

Effect of amendment of 1895.- The liability of a county to aid towns in the construction and maintenance of free public bridges imposed by the above section of the highway law is not affected by the amendatory act of 1895, ch. 416, doing away with that liability, as to a bridge completed twenty-six days before the amendatory act went into effect, since nothing upon the face of the act indicates that the legislature intended to give it a retroactive effect. Stone v. Supervisors, 166 N. Y. 85.

$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. On an uncontested motion to confirm the report of the commissioners so appointed, if said report is favorable to the applicant and confirmed by the court, costs may be allowed not exceeding fifty dollars sufficient to compensate the applicant's attorney for his services in the proceedings. 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. (Amended by L. 1904, ch. 192, in effect April 4, 1904.)

§ 154. When town not liable for bridge breaking. (C. & G. Gen. Laws, p. 1626.)

Evidence as to weight of load. In an action against a town, for injury received by a collapse of a bridge, it appeared that a traction engine weighing three and one-half tons was upon the bridge, that it was hauling a thresher weighing about one and one-half tons, and that at the time the accident occurred the engine alone was on the bridge; it was held that evidence may be introduced to show how much was added to the weight of the engine by reason of the effort of the engine to haul the weight of the thresher. Heib v. Town of Big Flats, 66 App. Div. 88, 73 N. Y. Supp. 86. See also Vanderwater v. Town of Wappinger, 69 App. Div. 325, 74 N. Y. Supp. 699.

§ 157. Carriages meeting on highway.— (A) Whenever any persons, traveling with any carriages, or riding horses or other animals, shall meet on any turnpike road or highway, the persons so meeting shall seasonably turn their carriages, horses, or other animals to the right of the center of the road, so as to permit such carriages, horses, or other animals to pass without interference or interruption (under the penalty of five dollars for every neglect or offense, to be recovered by the party injured).

Highway Law (L. 1890, ch. 568), § 163.

(B) Any carriage, or the rider of a horse or other animal, overtaking another shall pass on the left side of the overtaken carriage, horse or other animal. When requested to do so, the driver or person having charge of any carriage, horse or other animal, traveling, shall, as soon as practicable, turn to the right, so as to allow any overtaking carriage, horse or other animal, free passage on his left.

(C) In turning corners to the right, carriages, horses or other animals, shall keep to the right of the center of the road. In turning corners to the left, they shall pass to the right of the center of the intersection of the two roads.

(D) Any person neglecting to comply with or violating any provision of this section shall be liable to a penalty of five dollars to be recovered by the party injured, in addition to all damages caused by such neglect or violation. (Amended by L. 1902, ch. 96, in effect March 26, 1902.)

The law of the road as declared in this statute existed at common law, and would continue to exist if the statute were repealed. The section was only pased to create a penal offense for the particular case defined. The section applies to the case of vehicles passing each other on the same side of roads and streets so wide that there is no necessity for them to turn to the right of the center line of the highway in order to pass safely. Wright v. Fleischman, 41 Misc. 533, 85 N. Y. Supp. 62.

§ 163. Entitled to free use of highways. The commissioners, trustees, or other authorities having charge or control of any highway, public street, park, parkway, driveway or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule or regulation, 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, park, parkway or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages. But nothing herein shall prevent the passage, enforcement or maintenance of any regulation, ordinance or rule, regulating the use of bicycles or tricycles in highways, public streets, driveways, parks, parkways and places, or the regulation of the speed of carriages, vehicles, or engines, in public parks and upon parkways and driveways in the city of New York, under the exclusive jurisdiction and control of the department of parks of said city nor pre