The third section of the act of the 7th of April, 1824, (Laws of 1824, ch. 176, p. 194,) gives to the trustees of the village all the powers of commissioners of highways, within the limits of the village; but such powers must be exercised in conformity with the provisions of the revised statutes. (See 2 R. S. 779, § 10, 11.) There was there*522fore an unquestionable right, on the part of the complainants’,, to appeal from the decision of the trustees, acting as commissioners of highways, in laying out and altering the road in question; and I cannot conceive upon what grounds the judges refused to take jurisdiction of the case. The act of April, 1824, does not, in terms, give an appeal from the decision of the trustees in laying out a road in the village; but it constitutes them commissioners of highways for that purpose. And the eighty-fourth section of the title of the revised statutes relative to highways and bridges, (1 R. S. 518,) gives an appeal to any person, conceiving himself aggrieved by any determination of commissioners of highways, either in laying out, altering, or discontinuing, or in refusing to lay out, alter, or discontinue any road. It was therefore the duty of the judges, to whom the appeal was made, to proceed and determine the question submitted to their decision; and the proper course for the trustees, if they wished to put an end to the controversy, was to apply to the supreme court for a mandamus to compel the judges to whom the appeal was made, to proceed and determine the appeal. It was competent, however, for the appellants to waive their appeal at any time before the judges had proceeded to act upon the same; and I think there has been such a waiver on the part of the complainants in the present case. The damages occasioned by the laying out of the road could not be assessed while a regular appeal from the decision of the commissioners of highways was pending and undetermined. If the complainants, therefore, had taken no part in the proceedings before the jury, or the board of supervisors, as to the assessment of those damages, they might now have insisted that the appeal was still pending, and that the assessment was void. But it would be manifestly inequitable and improper to permit them to litigate the claim to damages before the jury, and afterwards by an appeal to the board of supervisors as to the amount which should be raised for their benefit, and if they failed in obtaining the whole amount of damages claimed, then to turn about and repudiate the whole proceedings, on the ground that their appeal from the decision of the commissioners of highways was still in force.
*523'‘The appeal being waived, by these proceedings of the complainants upon their claim for damages, the road or street is properly laid out, unless it has been laid out through a garden which had been cultivated as such for four years, or through yards or enclosures necessary to the use and enjoyment of the mansion house of the complainants. This part of the case as stated in the bill, I understand to be fully denied by the answer. It is not every court-yard or enclosure which is appurtenant or contiguous to a dwelling house, or to a manufacturing establishment, through which the commissioners are prohibited from laying out a street or highway. It is only such yards or enclosures as are necessary to the use and enjoyment of the dwelling house, or the manufacturing establishment. Such was the extent of the decision of the supreme court in the case of Clark v. Phelps, (4 Cowen's Rep. 190.) And it was the intention of the revisers to embody the substance of that decision in the last clause of the fifty-seventh section of the statute on this subject. (See Rev. Rep. on ch. 16, p. 15.) This clause of the statute must be construed in reference to the situation and nature of the property to which the yard or enclosure is appurtenant. In the country, where there is abundance of vacant land which may be appropriated for the purpose of making roads, and where the public would be equally well accommodated by the laying out of the road through such land, it would be highly improper for the commissioners of highways to attempt to lay out a road through a court-yard, or enclosure, attached to a dwelling house or a manufactory, although such yard or enclosure was not absolutely necessary to its use or enjoyment; and such an attempt might be considered as a violation of the spirit of this clause of the statute. But in the case of urban property, like the present, where vacant ground for the location of streets is not so easily obtained, and where a particular location is frequently a matter of importance to that part of the community for whose accommodation the street or highway is principally intended, the restriction upon the powers of the commissioners must, from the nature of the property and the relative claims of the public and the individual landholder, necessarily be more limited, in order to conform to the spirit of the statute. In this case the street was *524laid through a yard, or enclosure, which was contiguous to the dwelling house of the complainants. But that part of the enclosure through which the street is laid cannot be said to be necessary to the use and enjoyment of the mansion, ac- ■ cording to the true intent and meaning of this provision of the revised statutes. Again ; the commissioners may lay out a street through any kind of property, with the consent of the owner thereof. And perhaps it might be successfully contended in this case, that the conduct of the complainants in urging their claim to damages before the jury, and in carrying the claim for an increased allowance bofore the board of supervisors, amounted to a legal consent to the laying out of the street in the place where it had been located by the trustees acting in the capacity of commissioners of highways. Omnis ratihabilio retro trahitur et mandato acquiparatur. (Coke Litt. 207.)
That part of the answer which sets up the right of the cor- . poration to the street, as it is now laid out, as one of the original streets of the village, laid out by the proprietor as such upon the village plat and subsequently recognized by the conveyance of building- lots bounded on the same, is not strictly responsive to the bill. It cannot therefore be sufficient of itself to entitle the defendants to a dissolution of the injunction at this time. But if the defendants are right as to the original location of this street by the proprietor, and the dedication thereof to the use of the inhabitants of the village, as stated in the answer, the fourth section of the act of April, 1824, appears to be sufficiently broad to authorize the trustees of the village of Lansingburgh to open the street as it was originally laid out by such proprietor, although the proceedings of the trustees in laying out the street, in May, 1881, under the general provisions of the revised statutes relative to roads and highways, should appear to be invalid.
The result of the conclusions at which I have arrived is that the injunction in this case must be dissolved.