the money to do it; the amount of damages to each owner or occupant, shall be ascertained and determined by commissioners, 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, 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 commissioners. Every commissioner appointed as herein provided, shall be paid six dollars for each day actually and necessarily employed in such service, and neccessary 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 commissioners of highways, shall be served upon the commissioners of highways of each town; and the commissoners 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 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.

Construction of section.-This section does not conflict with § 94, ante. Its provisions are for the purpose of carrying out in detail the requirements of that section. Matter of Barrett, 7 App. Div. 482; 40 N. Y. Supp. 266.

Who may institute proceedings.-The proceedings may be initiated by a person liable for highway labor in one town to lay out a highway partly in his town and partly in another town, and when he has complied with all the statutory requirements, and the towns are in the same county, the county court is authorized to appoint commissioners in the matter. People ex rel. Knapp v. Kelk, 90 Hun, 497; 36 N. Y. Supp 51.

§ 97. Laying out, dividing and maintaining 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 into two or more highway districts, 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 highways shall cause the highway and the partition and allotment thereof to be recorded in the office of the town clerk in each of the respective towns. If such highway be upon a line between one or more towns and a city or incorporated village, such application shall also be made to the officers of such city or village having the powers of commissioners of highways, and such officers may agree with the highway commissioners of such towns as to the division of the labor and expense of opening, working and maintaining such highway. Whenever such officers shall disagree as to such division, application may be made for the apointment of commissioners, and the same procedure shall be had as is prescribed in this article for the settlement of disagreements between the highway officers of different towns. All highways heretofore laid out upon the line between any two towns or between a

town and a city or an incorporated village shall be divided and allotted or redivided and re-allotted, recorded and kept in repair, in the manner above directed. (Amended by L. 1894, chap. 727, and by L. 1895, chap. 181.)

Amendments of section.-The amendments to the section add the latter part relating to highways upon a line between a town and a city or village.

The districts allotted as provided in § 97 are the ordinary highway districts of the town. Day v. Day, 94 N. Y. 153. Application and allotment.—The following forms may be used for the application and allotment:

FORM NO. 85.

Application for Laying Out Highway on Town Line. 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.

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 commissioners of highways of both towns should unite in making any order or certificate which they are required to make; and all papers used in the proceeding should be made in duplicate, and one set filed in the office of the town clerk of each town. If the proposed highway is on a county line, and application is made to the court, it should be to 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. 174:

FORM NO. 86.

Order Laying Out Highway on Town Line.

And it is ordered that the said highway be divided into (two) dis. tricts as follows: 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 highway shall be the other of said highway districts, and shall be allotted to the town of B.

Commissioners of Highways of the Town of B.

§ 98. Final determination, how carried out.-The final determination 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.

The final determination of the commissioners appointed by any court as to laying out, altering or discontinuing a highway must be carried out by the commissioner of highways. People ex rel. D. L. & W. R. R. Co. v. County Court, 92 Hun, 13; 37 N. Y. Supp. 869.

§ 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 highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right of way. 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 and public right of way so abandoned, and the same shall thereupon be discontinued. (Amended by L. 1899, chap. 622.)

Amendment of section.-The amendment of 1899 provides that non-user of a public right of way for a period of six years shall constitute an abandonment. This provision would apply where the public has acquired a prescriptive right by user, amounting to implied dedication, but the highway has not been formerly laid out by the authorities.

Modes of abandonment.-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. 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.

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.)

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; People ex rel, Yonkers v. N. Y. C. & H. R. R. R. Co., 69 Hun, 166.)

The highway commissioners are required to file and cause to be recorded in the town clerk's office of the town, a written description, signed by them, of each highway so abandoned, and such highway shall thereupon be discontinued. (H. L., § 99.) The certificate describing the highway abandoned may be in the following form:

FORM NO. 87.

CertiЯcate of Abandonment of Highway.

We, the undersigned, commissioners of highways of the town of in the county of ........... ........., hereby certify that the highway (here describe it), has been abandoned by the public, and is

.......