[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 357 In Snyder v. Plass (28 N.Y. 465), the plaintiff in this action brought an action to recover damages for an *Page 358 alleged unlawful entry of the defendant, who was an overseer of highways, acting under the direction of the commissioners of highways, who are defendants in this case, upon the premises of the plaintiff, in opening and working a portion of the road in question, and it was held that the plaintiff could not recover. The decision of the court was in part upon the ground, that, where a road was ordered by commissioners of highways, to be laid out for part of the distance three rods in width, and for the residue of the distance, which was the bed or track of an old road, used for more than twenty years, two rods in width, the proceedings are not vitiated and rendered void by the provision in the order allowing a road to be opened which is only two rods wide. It was further held, that, regarding the first part of the order laying out the road, up to the point of intersection with the old road, as valid, and the residue as a description of the old road to be recorded, and for the purpose of having it opened two rods in width, by a subsequent order to that effect, the whole is consistent, and harmonious, and entirely within the powers of the commissioners. It was also decided that the fact, that one line of the survey extended into an orchard of over four years' growth, was not of itself sufficient to make out a case within the language of the prohibition of the statute against the laying out of a highway through an orchard; yet in such case the commissioners would have no right to deprive the owner of the benefit of fruit trees in an orchard, of the growth of four years or over, by an order for the opening of an old road to the width of two rods.
The facts in the case at bar and the one cited are essentially alike, and the only apparent difference seems to be that the one cited was for an entry upon the plaintiff's premises, while the case under consideration is for an injunction to restrain the commissioners from making any such entry. In attempting to make a distinction between them, and as a view of the subject, not embraced in the case decided, it is deemed by the counsel for the respondent that there is an impossibility of identifying the line of the road as laid by the commissioners with that applied for, certified to by the freeholders, *Page 359 and described in the notice of the commissioners. It is not entirely apparent that any such difficulty exists from an examination of the case. It does not appear from the findings of the court, upon the trial, and I am unable to discover it elsewhere. The notice describes the road as commencing at the shop of Jeremiah Wolven, and running a north-easterly course to the farm of Andrew De Witt, Jr., thence to the churchland lane, near the house of Isaac Snyder, and as passing through or over the improved lands of Jeremiah Wolven, and the unimproved lands of several persons, including the lands of the plaintiff, and the terminus must be considered, I think, as located according to the survey, at the center of the road, known as the old churchland lane, in conformity with the application, although to reach this terminus the old road is included in the survey. As we have seen, the court have held that the proceedings are not void, because a part of the route is over the old road, and thus have passed upon the question as to the termination of the road, and we are not at liberty to treat it as a new question not presented on the former hearing of the case.
It is said that the terminus is reached in a different direction from that described in the notice and so far at variance with the original application, as to render the proceedings void on that account. This fact is not proved by direct evidence; no map or diagram was introduced to establish any such divergence from the road applied for, nor was any such point presented and considered in the court below or in the case cited.
The road, as surveyed, was, no doubt, located through other improved lands besides those which were mentioned in the original notice, and, it would appear, through the improved land of the plaintiff; but it is by no means manifest, from the case itself or the findings, that the general route proposed was not followed, or that any new route was pursued essentially different from the one contemplated. On the contrary, the justice who tried the cause has found that the freeholders, after examining the route of the proposed highway, did make and sign a certificate that it was necessary and proper; that *Page 360 the commissioners gave the requisite notice, determined to lay out the highway, and did sign a certificate of such determination, describing the road according to a survey which they had previously caused to be made. With the facts presented it is difficult to see how there can be any real foundation for the claim made; that the road in its general course differed entirely from the one applied for. The new fact that the road passed through improved lands, other than those mentioned as such in the application of itself, does not establish the material change alleged to have been made, and, at most, shows that lands, stated to be unimproved, actually were improved lands.
It is also urged as a feature of the case, to which the attention of the court was not directed upon the argument of the case cited, that the notice of the meeting of the commissioners was necessary to give jurisdiction to lay the road over improved land. The case and the findings of the court show that notice of the application was duly served, and that the commissioners, before determining to lay out the road, caused notice in writing, made and subscribed by each of them, specifying the time and place where they would meet to decide upon the application, to be served in due form of law upon the respective occupants of the several tracts of land, through which the road was to run. The fact that the notice did not specify that the lands of the plaintiff and others were improved lands, which appears to be the basis of the objection made, I think was not material and of a vital character. No notice is necessary when the lands are unimproved. (1 R.S. 514, §§ 58, 62.) And, notice having been given to the occupants of the land, it was not defective because it erroneously stated that some of the lands improved were unimproved.
It was sufficient, I think, to confer jurisdiction, that the party had notice of, and abundant opportunity to be heard upon, the application.
It is also insisted, that the establishment of a new road, over that part of the route described as two rods wide, was void for two reasons, — first, because the statute allows no such *Page 361 road to be laid out; and, second, that it was laid out through the plaintiff's orchard in defiance of the statute. The decision of the court in the case cited, I think, disposes of and covers these objections. JOHNSON, J., in his opinion, holds that the commissioners had the power in respect to the old road to have a descriptive survey made of it, to have the description entered of record, and to order it opened to the width of two rods at least; that this was necessarily what they had done, and what they were strictly authorized to do, by statute, unless it be the interference with the orchard. As to the orchard, he holds that the finding of the court, that one line of the survey extended into an orchard, was not enough to establish that it would interfere with the orchard, and that it should have been found that the trees came within the survey, or that the owner would be deprived of the beneficial use and enjoyment of the trees by such survey or opening of the highway. Judge DENIO's opinion, as I understand, is not in conflict with these views, on either of the points suggested. And, as we have seen, both of the learned judges agree, that, even if the order opening the old road was illegal, it did not affect the validity of the order laying out the new road. It would, therefore, appear to be unimportant whether the old road was properly laid out and opened, for it is found by the court in this case, as well as the one cited, that the entry of the defendants complained of and proved upon the trial of this cause, and to restrain the defendants from proceeding with which, this action is brought, was made on that part of the road which is three rods in width, and did not extend into or adjoin the plaintiff's orchard. The two cases are so entirely similar and identical, that it is not easy to discover a distinction between them which would justify a disregard of the one cited as authority. The questions involved upon this appeal must, therefore, be considered as res adjudicata, and if the action to recover damages for the entry of the defendant Plass, under the directions of the commissioners, who are defendants here, cannot be sustained, then it necessarily follows that an action will not lie to restrain the defendants from opening the road in question. *Page 362
Some other points are pressed upon our consideration, based upon the hypothesis that the questions involved in this case are undecided; but, if the views I have expressed are sound and maintainable, it is not necessary to discuss them.
The judgment of the General Term, and at the Circuit, should be reversed and a new trial granted, with costs to abide the event.