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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 303 If the locus in quo was a public highway, the defendant, as commissioner of highways, was justified in the entry complained of, and in the removal of the plaintiff's fences. The referee decided that it was not a highway, at the time of the entry, it not having been legally laid out, or legally opened; that the consent of the plaintiff to its alteration, in 1855, (some two years before suit brought,) was a mere licence, which the plaintiff could revoke after the alteration was made; and that such consent having been given under a mistake or misapprehension of facts, the alteration made by the commissioners was void. In my opinion neither of these positions are maintainable.
1st. Was the highway legally laid out, in 1839? The referee, holding that it was not, gave two reasons for his decision: 1st. That the act of the two commissioners on the 1st of May, 1839, in the absence of the other, he not being notified to attend the meeting, were not valid as the acts of the commissioners of the town; and 2d. There should have been an application in writing by some person liable to be *Page 304 assessed for highway labor. The act of the commissioners on the 1st of May, 1839, referred to, was the signing and filing of an order in the town clerk's office, laying out the road in question, in which it was recited that all the commissioners of highways of the town met and deliberated on the subject embraced in the order. The referee found as facts, that on the 23d of April, 1839, all three of the commissioners met and viewed the proposed route, and on the 1st of May following two of them caused it to be surveyed, and made the order of that date laying out the highway; and that one of the commissioners was not present at the survey, nor was he notified to attend the same. It was not found that the third commissioner did not meet with the others and deliberate on the subject of laying out the highway, but only that he was not present at the survey or notified to attend. The revised statutes provide that, "any two commissioners of highways of any town may make an order in execution of the powers conferred in this title, provided it shall appear in the order filed by them that all the commissioners of highways of the town met and deliberated on the subject embraced in such order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon. (1 R.S. 525, § 125.) The order, therefore, in the present case, was a valid one. It recited that all the commissioners met and deliberated on the subject of laying out the road. The presumption is that he did, and that the act was legal until the contrary appear. There is no finding that the third commissioner did not meet and deliberate with the others on the subject, and looking into the evidence, the truth of the recital plainly appears. The fact that he was not present at the survey, or notified to attend, did not make the order void, or tend to falsify the recital that the third commissioner met and deliberated with his colleagues in respect to its subject matter. The survey was a mere ministerial act, not requiring his presence to give validity to an order of the commissioners laying out and establishing the highway. *Page 305
Nor was it necessary to the validity of the order, as the referee held, that there should have been an application in writing by some person liable to be assessed for highway labor. There was no affirmative evidence of an application in writing for the highway, by a person liable to an assessment. It was laid out by the commissioners, with the assent of the owner of the lands, amongst whom were persons through whom the plaintiff derived his title; such owners releasing their damages. Commissioners of highways may, upon their own motion, and without any application therefor, lay out a highway. The precise question has been decided in this court. (The People v. Supervisors ofRichmond County, 20 N.Y. Rep., 252. See also Gould v. Glass, 19 Barb. 179.)
2. The statute declares that every public highway laid out that shall not be opened and worked within six years from the time of its being so laid out, shall cease to be a road for any purpose whatever. (1 R.S. 521, § 99.) The highway in question, the referee decided, ceased to be a road, as it was not within the six years opened and worked as contemplated by the statute. The facts which he found, and on which he based his legal conclusion were these: after the order was made, and during the year 1839, the road was partially opened, and during that year and others, was cut out and partially worked; it was travelled more or less during each of the years from 1839 to 1851, though a "log road," (a prior traveled track leading northwesterly from the same starting point,) was the principally traveled track in the latter year. From 1839 to 1849, the road was intercepted by fences at different places north of the plaintiff's farm, and also on that farm, which were kept up by the owners of the respective farms, but which were taken down and replaced by those desiring to pass along the route; in other words, there were bars across the road, at some seasons of the year, at two or three points, which travelers let down and put up as they passed over the route. This is a finding in substance, that after the making of the order, in *Page 306 1839, the road was that year opened in part, and during 1839 and succeeding years, was opened and partially worked throughout the route, and was traveled by the public more or less every year from the time of its being thus laid out, opened and worked. The statute is that a public highway laid out by commissioners as prescribed by law, if not opened and worked within six years from the time of its being so laid out, shall cease to have any legal existence as a highway. The requirement is that it shall beopened and worked within six years after making the order; that is, the commissioners shall have six years in which the road they have laid out may be opened and worked, but if it be not done within that period, their order laying out or establishing it shall have no legal effect. The statute does not prescribe how well or how much it shall be worked; if opened and worked at all, it will not lose its legal existence. In this case the highway was opened the same year it was laid out, and, as the referee finds, partially worked. It was opened and worked so that it has been traveled by the public since 1839. The referee clearly erred in the conclusion that "it was not within the six years opened and worked as contemplated by the statute."
3. There was, therefore, a legal public highway, at the time of the alleged trespass, without regard to what occurred in 1855. But in 1855, the surveyed route of the road in controversy was altered by the commissioners on the application and by the consent of the plaintiff himself. This alteration was made in August, 1855, the plaintiff executing a writing under seal releasing all damages, and in which it was admitted that the alteration was upon his application. Soon afterwards he moved his fence, thereby opening the road in conformity to the alteration. Some months intervened, when he put it back again; but being again required by the commissioners, moved it according to the alteration. Soon thereafter, however, he moved it back, and even further east than where it stood when the alteration was made, whereby a team could not pass along the route of the highway without *Page 307 removing or taking down the fence. The consent of the plaintiff to this alteration, and his acts connected therewith, and subsequent thereto, the referee held, operated as a license, until revocation, and therefore the acts of the defendant in taking down the fences, after such revocation and notice thereof, rendered him liable as a trespasser. This was plain error. The plaintiff's consent was not a license that he could revoke after the alteration was made. Commissioners of highways may act upon the parol consent of the owner in laying out or altering a highway across his lands; and although such consent may be revoked, it must be done before the road is laid out or the alteration made. If the commissioners act immediately on the faith of the virtual consent, by laying out the road or making the alteration, he will be estopped from denying the legality of the act. In The People v. Goodwin, (1 Selden, 568,) it was held that a parol consent was sufficient, and if not revoked before the commissioners acted on the faith of it was irrevocable. In this case the alteration was made immediately on the plaintiff giving his consent, and he at once moved his fence to conform to it.
Again: it was held that the plaintiff's consent having been given under a mistake or misapprehension of facts, the alteration then made by the commissioners was invalid. It is difficult to discover what mistake of fact induced him to give his consent, even if such a consideration could affect the legality of the official act of alteration. It is found that at the time the alteration was made, the commissioners had met to consider an alleged encroachment on the highway. Upon the surveyor taking the bearing of the first course, according to the survey of 1839 indicated by the order laying it out, it was ascertained that from that point (the southern terminus) the line diverged west of the traveled track, and cut off a strip of the plaintiff's improved land between such line and the traveled track. The commissioners represented that they had no doubt the road was originally so laid out, and *Page 308 that unless some compromise or arrangement could be affected, they would be required to open the road according to the line thereof as indicated by the order of 1839; which representation they then believed; and the plaintiff fearing and believing that he would be required to open the road accordingly, consented to be considered as an applicant for the alteration, which the commissioners immediately proceeded to make. Such consent or application was founded in mistake, (as the referee finds;) the plaintiff believing, at the time, that the highway had been laid out in 1839, and could be opened through his improved field westerly of the traveled track, without his consent, by force of the order made by the commissioners in that year. Here was no mistake or misapprehension by the plaintiff of fact, but of law, if any thing. Whether the road could be opened without his consent, by force of the order of 1839, was a question of law, and not of fact; and there can be no relief in such a case, even on a bill in equity filed for that purpose. But it was of no sort of importance that the application was made and consent given either under a mistake or misapprehension of fact or law by the plaintiff, the commissioner practicing no fraud on him. Here a mere statement or expression of opinion by the commissioners, as to what they conceived would be their official duty, is ingeniously found by the referee to be a representation made to the plaintiff on which he acted; but even this statement or representation is expressly found to have been made in good faith. The plaintiff not only consents, but he is the applicant for the alteration. He calls on the commissioners to perform an official act of public concern, and it becomes a matter of record. The conclusion is a most absurd one, that the plaintiff may treat the act as ipso facto void, because of his own mistake, and hold the public officer as a trespasser for acting under an order that he had procured to be made, while it stands upon the record in full force. His consent to, and his acts connected with, the alteration, estop him from denying the validity of the proceeding. *Page 309
This alteration, in 1855, would be conclusive against any right of the plaintiff to maintain the action. It was done on his motion and for his convenience alone; and was a valid exercise of the powers of the commissioners. No certificate of freeholders was required; for it is only when the consent of the owner or occupant is not given that such certificate becomes necessary. (1 R.S. 514, § 58.)
I am of the opinion, therefore, that the referee erred in the legal conclusions: 1st, that the highway was not laid out in 1839 according to the statute; 2d, that it ceased to be a road, as it was not within six years opened and worked as contemplated by the statute; 3d, that the consent of the plaintiff to the alteration in 1855 was a mere license that could be revoked after such alteration was made; and, 4th, that such consent having been made or given under a mistake or misapprehension of facts, did not estop or prevent him from insisting on the invalidity of the proceeding in this action.
The judgment of the Supreme Court should be reversed, and a new trial ordered, with costs to abide the event.
All the Judges concurring,
Judgment reversed, and new trial ordered. *Page 310