
    Ladd v. French.
    (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    Highways—Rights of Owkeb of Fee.
    The owner of the fee in a highway can recover damages for the removal of soil therefrom by the road officers for the purpose of mending the road elsewhere, when such removal was not required to reduce the surface to the proper grade. Following Robert v. Sadler, 10 H. E. Rep. 428.
    Appeal from St. Lawrence county court.
    Action of trespass by Zacheus E. Ladd against Sylvester French, for digging and carrying away soil and gravel from that portion of a highway in the town of Fine, the fee of which is owned by plaintiff. Judgment for plaintiff, and defendant appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Thomas V. Russell, for appellant. J2. R. Weary, for respondent.
   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, 10 N. E. Rep. 428, 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 inequalities elsewhere, or to improve the road elsewhere. The gravel was plaintiff’s, although the public liad 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. All concur.  