N. Y., 366.) He can not deviate from the way and go upon another part 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.)

Private way by statutory proceeding.-A fourth method of creating a private road is by statute. Section 7, Art. I. of the constitution 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 opening thereof shall be first determined by a jury of free、 holders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited." In proceedings under the statute to lay out a private road, exact and technical accuracy is not required, but simply a substantial compliance with the statute. A description in an application by reference to a private way used by permission of the owner of the land for a great number of years, so that it has come to be called a road, is sufficiently definite. The courses need not be specified in the application by the compass in degrees and minutes; and where the general course is given as easterly, etc. and the exact course and distance can be determined from other particulars in the application, or by natural monuments referred to, there is substantial compliance with the statute. Slattery v. Winne, 101 N. Y., 218; People v. Taylor, 34 Barb.,

481.

Form of application.-The application to lay out a private road may be in the following form:

FORM NO. 91.

Application to lay out private road.

To the Commissioners of Highways of the Town of the County of

in

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 T. W., occupied by R. S. Dated this

day of

19....

L. M.

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 parties interested will allow, when, at a place designated in the town, a jury will be selected for the purpose of determining upon the necessity of such a road, and to assess the damages by reason of the opening thereof.

§ 108. Copy application and notice delivered to applicant.Such commissioner shall deliver to the applicant a copy of the application to which shall be added a notice of the time and place appointed for the selection of the jury, addressed to the owners and occupants of the land.

Form of notice.-The following form may be used for the notice:

FORM NO. 92.

Notice of Application to Lay Out Private Road.

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
19...., at
.... o'clock
...noon, for the purpose of determining upon the necessity

in the
of such road, and assessing the damages therefor.
Dated this

......

day of

19....

A. B.,

C. D.,

E. F.,

Commissioners of Highways.

§ 109. Copy and notice to be served.-The applicant on receiving the copy and notice shall, on the same day, or the next day thereafter, excluding Sunday and holidays, cause such copy and notice to be served upon the persons to whom it is addressed, by delivering 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.

Affidavit of service.-The following form for the affidavit of service may be used:

FORM NO. 93.

Affidavit of Service of Notice of Application to Lay Out Private

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 19... by delivering to and leaving with each of them, copies of the same (or if served by leaving copies at the residence, so state). Subscribed and sworn to before me,

§ 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, chap. 109, in effect March 23, 1904.)

Amendment of section.-The amendment of 1904 made in view of the increase in the number of the jury from six to twelve. See next section as amended.

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

Amendment of 1904.-The amendment of 1904 increased the number of jury from six to twelve.

§ 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.

Form of summons.-The following form may be used for the

summons:

FORM NO. 94.

Summons of Jurors to Determine Necessity of Laying Out Private

...

To (insert the names of the twelve jurors selected): You are hereby summoned and required to appear at the in said town of .... on the ...... day of 19...., at ...... o'clock in the .........noon, to form a jury of freeholders to determine as to the necessity of laying out a private road through the lands of T. W., on the application of L. M., and to assess the amount of damages sustained by reason of such opening, if it is determined to open the same.

§ 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 reason of the opening thereof. (Amended by L. 1904, chap. 109, in effect March 23, 1904.)

Amendment of 1904 made in view of the increase of the number of the jury from six to twelve.

Oath to jurors.-Before entering upon their duties the jurors shall take the following oath:

FORM NO. 95.

Oath of Jurors to Determine Necessity of Laying Out Private Road. 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 L. M., and that you will well and truly assess the damages occasioned by the opening of such road.

§ 114. Their verdiot.—The jury shall view the premises, hear the allegations of the parties, and such witnesses as they may produce, 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 commissioners.

Oath to witnesses.-The following oath may be administered to witnesses appearing before such jury:

FORM NO. 96.

Oath of Witnesses Before Private Road 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.

Form of verdict.-The following form may be used for their verdict:

FORM NO. 97.

Verdict of Private Road Jury.

COUNTY OF

Town of

.....

.....

SS.:

.....

We, the undersigned, being twelve disinterested freeholders of the said town of having met on the ...... day of 19...., 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

.....

19....

(The twelve jurors sign here.)

§ 115. Value of highway discontinued. If the necessity of such private road has been occasioned by the alteration 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 consideration. 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.