
    Zacheus E. Ladd, Resp’t, v. Sylvester French, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1889.)
    
    Highways—Right to use gravel adjacent to highway for the purpose of improving same.
    Gravel cannot be dug from between the traveled part of a public high way and the fence of an adjacent owner for the purpose of improving the road at a spot other than that from which it is taken. Robert v. Sadler, 104 Ñ. Y., 229; 5 N. Y. State Rep., 594, followed.
    
      Thomas V. Bussell, for app’lt; Edward H. Neary, for resp’t.
   Learned, P. J.

This case involves a small amount, and yet the principle in question is very important.

' The plaintiff is the owner of land over which a highway runs. The defendant; by the direction of the commissioner of highways, dug gravel from the plaintiff’s land between the traveled part of the road and the plaintiff’s fence, and carried it away and put it on other parts of the road within the road district.

In our opinion the question is settled by the decision in Robert v. Sadler (104 N. Y., 229; 5 N. Y. State Rep., 594), and it would be useless to discuss it. This gravel was not taken for the purpose of reducing the highway to a proper grade, which would seem, by that opinion, to be permissible. It was taken to fill up some unequalities elsewhere, or to improve the road elsewhere. The gravel was plaintiff’s, although the public had a right of way over it. And this taking of the gravel was not incident to the rights of the public.

Judgment affirmed, with costs.

Landon and Ingalls, JJ., concur.  