
    Horace H. Moore, Pl’ff, v. The Village of Fairport et al., Def’ts.
    
      (Supreme Court, Monroe Special Term,
    
    
      Filed January, 1895.)
    
    1. Highways—Obstructions.
    Chap. 568 of 1890 requires simply, as a condition precedent to the removal of highway obstructions by the commissioners, that the owner or occupant of the premises, in front of which such obstructions exist, should first have the opportunity to remove the same without the intervention of the commissioners, and to this end, that a notice, specifying the extent and location of such obstructions and requiring the owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice, should be served.
    2. Same.
    The provision, which enables the person responsible for an obstruction by denying the same to obtain a writ of inquiry and thus to submit his rights to a jury of twelve freeholders, no longer exists.
    3. Villages—Trustees—Sidewalks.
    The legislature has empowered the trustess of defendant to cause any obstruction to the sidewalk or highways of the village to be removed.
    4. Same.
    Such authority is limited only by the requirement that it shall be exercised with a reasonable degree of judgment and discretion.
    
      William F. Cogswell, for pl’ff; Walter S. Hubbell, for def’ts.
   Adams, J.

A careful consideration of the evidence in this case forces me to the conclusion that the north line of Church street, in the village of Fairport, as established by the Skinner survey and as located upon both the Skinner and Peacock maps, is the one which must be adopted as the true line. There are some facts and circumstances, as for instance, the former location of the lot fences, which militate somewhat against this conclusion, but nevertheless the balance of proof, upon this issue, seems clearly with the defendants, and with this fact once established, it is impossible for me to see upon what theory the plaintiff can maintain his action, for whatever right he has must now rest upon the following facts which, save in the one particular already adverted to, are practically undisputed.

The trustees of the village of Fairport, by virtue of certain power and authority conferred upon them by the charter of that municipality, have assumed to establish a line and grade for the construction of a -new sidewalk in front of plaintiff’s premises upon the north side of Church street, and have directed plaintiff to construct such walk upon the line and grade so established, which it now appears are within the boundaries of the street. In defiance of this direction thg plaintiff has seen fit to locate his walk upon the line of a former walk and a few feet south of the line designated by the trustees, where upon the latter ordered him to remove, the same within three- days to the location established by them. Their power to do this is denied by the plaintiff, and whether or not he is justified in making this contention is the only question to be considered. In the view of the case which the learned counsel for the plaintiff appears to entertain, and which is so adroitly presented as to barely fail of conviction, the sidewalk in question can only be removed from the place where the plaintiff has located it upon the assumption that it is an encroachment upon, or an obstruction to, the highway itself, and even then such removal must be accomplished by the,means provided by the statute relating to penalties for obstructing a highway, as it existed prior to the amendment of the highway law in 1890. This position I am persuaded however, is untenable for reasons which further examination will make manifest.

In the first place if the assumption that this walk must be treated as an obstruction and its removal accomplished by virtue of the power and authority residing in the trustees as commissioners of highways be adopted, it would yet be capable of demonstration, I think, that in their effort to compel a removal, they have substantially complied with the requirements of the existing statute, which, Í take it, must control their action. This statute, which in several essential particulars, is a modification of the provisions of the former statute, requires simply as a condition precedent to the removal of highway obstructions by the commissioners, that the owner or occupant of the premises, in front of which such obstructions exist should first have the opportunity to remove the same without the intervention of the commissioners, and to this end, that a notice should be served specifying the extent and location of such obstructions and requiring the owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice. Laws 1890, chap. 568 § 105. As has been stated, the trustees did serve a notice upon the plaintiff which required him to remove his sidewalk to the line and grade established by them within three days, which in view of the fact that, he knew when he constructed the walk, what action had been taken by the trustees would seem to afford him ample time and opportunity to comply with their requirements, and inasmuch as he built the walk himself, any specific description thereof would hardly be necessary to apprise him of its extent and location. Town of Sardinia v. Butler, 78 Hun, 527 ; 61 St. Rep. 380.

It will be observed that the provision which enabled the person responsible for an obstruction by denying the same to obtain a writ of inquiry and thus to submit his. rights to a jury of twelve freeholders, no longer exists. The elimination of this remedy and the simplifying of the notice which highway commissioners are required to serve in cases of obstruction were obviously designed by the legislature to afford a more summary method of dealing with cases of this character than existed under the former provisions, and if this be true, the courts should not be over anxious to so construe the statute as to defeat the object sought to be obtained.

But as already intimated, in my opinion, the charter of the village of Fairport furnishes ample justification for the action taken by its trustees without compelling any resort to the highway laws. Among the powers conferred upon these officers by the provisions of such charter, the following may be enumerated, viz.:

“To cause and direct the manner of making and repairing sidewalks, crosswalks and highways in said village.” Laws 1881, chap. 638, § 29, subd. 13.

_ “ To prevent the incumbering or obstructing, of any street, highway, crosswalk, sidewalk, sewer, ditch, gutter or sluice in said village * * * and to cause such obstructions to be removed and to assess the expense of such removal ” upon the premises of the person responsible for the same. § 29, subd. 14. “ To cause the sidewalks in any street, highway or lane to be graded, graveled, flagged, planked or repaired and to prescribe and determine the manner of doing the same." § 43.

“In the event of the failure of the owner or occupant of premises to construct or repair such sidewalk within the time and in the manner specified, to cause the same to be done and to collect the expenses thereof by suit or assessment.” § 44.

Thus it will be seen that the legislature has not only clothed defendant’s trustees with full authority to compel the construction of sidewalks in such manner and of such material as they may deem proper, but it has likewise empowered them to cause any obstruction to the sidewalks or highways of the®village to be removed.

As was said by Denio, C. J., in the case of Walker v. Caywood, 31 N. Y. 51, 60, “ the power seems sufficiently broad to embrace this case; no notice to the proprietors is required'; it may be said to be an extraordinary power, and one which might be readily abused; the defendants however seem to have proceeded with reasonable deliberation and indulgence and * * * if the locus in quo had been indisputably within a known and acknowledged street, probably no doubt could be entertained but that (they) were fully justified.”

This case is therefore amply authority for the proposition hereinbefore advanced that with the fact of the north line of Church street established in accordance with defendant’s contention nothing, remains for plaintiff to rest his case upon.

Possibly the application of a simple test will operate as an additional demonstration of the correctness of that postulate.

Suppose, therefore, that instead of constructing the sidewalk where he did, plaintiff had followed the line and grade to which his attention was directed with the single exception that at either end of the walk he had deflected it two or three feet to the south so as to bring it out of line with the adjoining walk? It will hardly be contended, I assume, that the trustees would not in that case, have the power under the provisions of the charter herein-before quoted, to compel him to straighten his walk, and in the-event of his refusal to do so, to straighten it at his expense, and if so then why should they not be able to compel the removal of- the-entire walk the samé distance? The truth is, this charter, like all similar charters as well as the general act for the incorporation of villages, confers upon the trustees of such municipalities authority over their highways and sidewalks which is only limited by the requirement that it shall be exercised with a reasonable degree of judgment and discretion, and were this act so, it would be exceedingly inequitably to impose upon them the duty and responsibility of keeping the highways, walks and alleys free from obstruction and in a good state of repair. The plaintiff having failed to sustain his cause of action must submit to a dismissal of the complaint upon the usual terms.  