no longer used as a public highway; and pursuant to section 99 of the highway law, the same is discontinued. Dated this ...... day of 19.... A. B., C. D., E. F., Commissioners of Highways. If a highway is rendered impassable or fenced off by a trespasser 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 highway, it ceases to be a highway. to be a highway. Horey v. Village of Haverstraw, 124 N. Y. 273; Mangam v. Sing Sing, 26 App. Div. 464; Excelsior Brick Co. v. Haverstraw, 142 N. Y. 146. It does not follow that because a portion of that which was orig inally laid out as a continuous highway 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.) The burden of showing non-user is on the party making the claim. Id. City of Cohoes v. D. & H. C. Co., 134 N. Y. 397; Matter of Woolsey, 95 N. Y. 135. Statutory proceeding.-The statutory proceeding to discontinue a highway is the same as that to lay out or alter a highway. Application should first be made to the highway commissioners of the town and then within thirty days thereafter a further application should be made to the county court to appoint three commissioners to determine upon the uselessness of such highway and to assess damages for its discontinuance. motion to cofirm, vacate or modify the decision of such commissioners may be made in the same manner as in the other proceeding. A Reference may be had to the forms Nos. 60-74 which, with slight changes, will serve for forms used in this proceeding. A town meeting has no power to discontinue a highway once established. That can be done only by the intervention of the authorities and according to the procedure pointed out in the highway law. (Hughes v. Bingham, 135 N. Y. 347.) § 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. Construction of section.-See notes under § 80. There can be no implied and irrevocable dedication by user until land has been used by the public as a highway for the period of twenty years. Premises which are so used become public highways without formal dedication. Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360; City of Cohoes v. R. R. Co., 134 N. Y. 397; James v. Sammis, 132 N. Y. 239; Spier v. New Utrecht, 121 N. Y. 420. Proof of acceptance is unimportant. The user itself constitutes an acceptance. Porter v. Village of Attica, 33 Hun, 605; Vandermark v. Porter, 40 Hun, 397. Character of use.-The use must be like that of ordinary highways, in order to justify the commissioner in laying out a highway under this section. Private roads, for instance, do not become public highways because the public are permitted to travel upon them. Spier v. Town of New Utrecht, 121 N. Y. 420; Palmer v. Palmer, 150 N. Y. 139. The public may acquire a prescriptive right of way, but unless there has been a use of the land as a highway it does not become one. As said by the court in the Spier Case, supra, "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." This doctrine was followed in People v. Underhill, 144 N. Y. 316, and in Palmer v. Palmer, supra. Opening highway.-The highway commissioner can only determine questions as to the boundary of the road according to its actual use for twenty years. Kerr v. Hammer, 39 St. Rep. 708; Ivory v. Town of Deerpark, 116 N. Y. 476; Alpaugh v. Benett, 59 Hun, 45. And his order cannot increase the width or change the location of the highway. If the actual user has not been at least two rods in width, it seems that the highway cannot be laid out to that width without a formal proceeding under the statute. Certainly the commissioner cannot order the overseers to arbitrarily take land for that purpose. Such a proceeding would be unconstitutional and void. § 101. Fences to be removed.-Whenever a highway shall have been laid out through any inclosed, cultivated or improved lands, in conformity to the provision of this chapter the commissioners of highways shall give to the owner or occupant of the land through which such highway shall have ben laid, sixty days' notice in writing to remove his fences; if such owner shall not remove his fences within the sixty days, the commissioners shall cause them to be removed, and shall direct the highway to be opened and worked. Form of notice.-The notice may be in the following form: FORM NO. 88. Notice to Owner or Occupant to Remove Fences Along Highways. To T. W.: Please take notice that we, the undersigned commissioners of high ways of the town of ....., in the county of ...... ......... ...... having by an order (or certificate), duly made and filed in the office of the town clerk of said town, bearing date the ... day of 19...., laid out a public highway through your inclosed lands, do hereby require you to remove your fences from within the bounds of said highway, within sixty days after the service of this notice. § 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 occupant, 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. Shade trees in highway. See § 156, post, and notes. ment of tax for planting. See § 44, ante and notes. Abate § 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. The notice may be in the following form: To T. W.: FORM NO. 89. Notice to Remove Fallen Tree. 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 19.... L. M. § 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. Necessity of notice.—It is not necessary under this section to give the defendant notice of the obstruction specifying the extent and location thereof and directing him to remove the same within sixty days, before an action can be brought to recover the penalty. Town of Corning v. Head, 86 Hun. 12; 33 N. Y. 360. Title of real estate.-An action for a penalty because of an obstruction of a highway does not involve a title to real estate. Paine v. East, 15 Wk. Dig. 281; Parker v. Van Houten, 7 Wend. 145; Sage v. Barnes, 9 John, 365. But it is a good answer to a suit brought in a justice's court to plead title to the land and deny that the place is a highway. Little v. Young, 34 N. Y. 452. Highway commissioners of two towns cannot unite as plaintiff and bring an action for a penalty or forfeiture for an encroachment upon a highway. The authority is confined to the officers of the town where the offense has been committed. Bradley v. Blow, 17 Barb. 480. Highway need not be recorded.-It is not necessary that the highway obstructed be recorded before the penalty can be recovered. Davenpeck v. Lampert, 44 Barb. 596. The liability exists for obstructing a highway dedicated to public use, and used as such for twenty years. Town of Corning v. Head, 86 Hun, 12; Town of West Union v. Richey, 64 App. Div. 156; 71 N. Y. Supp. 871. Nor can the owner of land obstruct the highway, even if damages assessed for taking the land have not been paid. Chapman v. Gates, 54 N. Y. 132. But see Little v. Dunn, 34 N. Y. 452, to the effect, that a highway cannot be obstructed until it has been opened. General doctrine relating to obstructions.-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. People v. Horton, 64 N. Y. 610. 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 construct a building thereon, or to cut a ditch or mill-race across it without bridging the same, and in general, to unnecessarily or 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.) Long continued obstruction will not justify its maintenance. (Driggs v. Phillips, 108 N. Y. 77; Walker v. Caywood, 31 N. Y. 51; Milkan v. Sharpe, 27 N. Y. 611, 622; Windsor v. D. & H. C. Co. 92 Hun. 127; Mangam v. Village of Sing Sing, 26 App. Div. 464. 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 principles of common law would be obstructions or encroachments, and may delegate the power to the governing body of a municipality, (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 exceptions "public highways belong, from side to side and end to end, to the public." Any permanent or unnecessary obstacle to travel in a street or highway is a nuisance although space may be left for the passage of the public. The public are not confined to the traveled roadway. Thus a bay-window project |