Appeal from a judgment of the Supreme Court, Sullivan county, entered upon the decision of the court without a jury adjudging that the defendant Thomas H. Shimer convey to the defendant county of Sullivan certain lands therein described and that the plaintiff recover costs against both defendants.
*386The old Middletown and Wurtsboro turnpike crossed the Wurtsboro mountain a short distance east of the hamlet of Wurtsboro. This portion of the turnpike later became a portion of the State highway known as route 17. At the point involved in this lawsuit the State highway followed the route of the old turnpike and ran in a generally northerly and southerly direction with a curve about 300 feet in length. The outside of the curve was to the east and the inside to the west. At this point the highway ran through the lands of the plaintiff. The defendant Shimer owned the land on the east side of the State highway immediately north of the plaintiff’s lands. The county owned the roadbed, having purchased it from the Middletown and Wurtsboro Turnpike Company. In 1930 the State desired to reconstruct this highway. It eliminated the curve above- mentioned by straightening the road at that point. The county of Sullivan acquired for right-of-way purposes for this new highway all of the lands of the plaintiff between the westerly side of the old highway and the westerly side of the new highway. When the construction was completed it was found that a small parcel lying between the westerly side of the old highway and the easterly side of the new highway was not actually needed for such new highway. At the same time considerable damage had been caused to the lands of the defendant Shimer immediately to the north of plaintiff on the easterly side of the highway, by the lowering of the grade at that point. In order to avoid the payment of damages to Shimer the county first conveyed to him the westerly half of the old highway and then the lands lying between the westerly edge of the old highway and the easterly edge of the new highway.
The plaintiff by this action asked that the conveyance from the county to the defendant Shimer be declared null and void and that the county be compelled to convey back to the plaintiff these lands which it no longer needed for highway purposes. The court below has sustained the plaintiff to the extent of directing that the defendant Shimer convey back to the county these two parcels.
Whether the plaintiff owned the fee of the old highway or whether the fee was in the county, the plaintiff had a right of access from and over it in its entirety to every part of her land. Among the rights of the owner of lands adjoining a highway are those of light, air and access regardless of where the title may be. (Donahue v. Keystone Gas Co., 181 N. Y. 313; Story v. N. Y. Elevated R. R. Co., 90 id. 122.) The county could not deprive the plaintiff of this right except for compensation. Hers was the dominant tenement and the lands occupied by the old highway con*387stituted the servient tenement irrespective of whether the county or the plaintiff owned the fee of the highway. This right attached to the plaintiff’s lands adjoining the old highway. It was not common to the public at large. (Kane v. N. Y. Elevated R. R. Co., 125 N. Y. 164.)
When the county acquired the parcel between the old road and the pavement of the new road it did so for highway purposes. Except for these lands being necessary as a highway they could not have been so acquired. Upon acquisition they became a part of the right-of-way of the new highway and as such were burdened with the usual right of access in the plaintiff as an abutting owner. She had access over this right-of-way to the pavement of the new highway for the entire distance that her lands fronted upon the new highway. Hers were then the rights of an abutting owner along this new highway. The county’s later discovery that it had taken from her by condemnation more land than it actually needed for the new highway did not authorize it to sell such land to another, one who was in no sense an abutting owner thereto, to the complete extinguishment of plaintiff’s property rights therein.
The effort to make the defendant Shimer an abutting owner and thus bring him under the provisions of section 155 of the Highway Law* by first conveying to him the westerly half of the old highway was but a subterfuge and an ineffectual one at that. The plaintiff already had an easement of access over this parcel. The very intent and purpose of the proviso contained in section 155 was to protect the rights of an abutting owner and to prevent just such an infringement upon them as was attempted here. That section permits the sale but only to the owner of the property immediately adjoining the highway and upon the condition that such conveyance Avill give such adjoining owner a frontage “ immediately in front ” of his lands upon the new highway and right-of-way when completed. I agree with Judge Rhodes that the county was not compelled to sell if it did not wish to and that it might have held the lands for highway purposes. But the statute is clear that if the county does elect to sell, it can do so only to the OAvner whom the parcel directly fronts. One of the reasons for this is that such owner already has an easement of access over these lands. Another is that it would be manifestly unjust to sell to a stranger and thus isolate this immediately adjoining owner from the highway by cutting off her right of access which is so essential to the complete enjoyment of her lands.
*388In his dissenting opinion Mr. Justice Rhodes relies upon a ground not urged in either brief, to wit, that the plaintiff is not a party aggrieved and may not maintain the action as it is not a taxpayer’s action. This holding is untenable. (See Brooklyn City Railroad Co. v. Whalen, 191 App. Div. 737; affd., 229 N. Y. 570; People ex rel. N. Y. C. & H. R. R. R. Co. v. Public Service Comm., 195 id. 157; Matter of Niagara, Lockport & Ontario Power Co. v. Prendergast, 229 App. Div. 295.) Surely these defendants have attempted to do that which the statute expressly says may not be done. It is true that the county seeks no redress. It has been a party to the illegal transaction by which the plaintiff’s vested rights have been interfered with. The plaintiff has suffered damage as the result of such illegal acts and is, therefore, a party aggrieved. Under these circumstances we may not say that the plaintiff is not an interested party to the extent that she may protect these rights by having the illegal transaction annulled.
The judgment below should be affirmed, with costs.
Hill, P. J., and McNamee, J., concur; Rhodes, J., dissents with an opinion, in which Crapser, J., concurs.
Highway Law repealed by Laws of 1936, chap. 63. The subject-matter of former section 155 is covered by section 37 of the new Highway Law, enacted by the same chapter.— [Rep.