
    Zacheus E. Ladd, Respondent, v. Sylvester French, Appellant.
    
      Supreme Court, Third Department, General Term,
    
    
      July 6, 1889.
    
      Highways. Gravel.—Gravel cannot be taken, by direction of the commissioner, from the space between the traveled part of the road and the fence of an adjacent owner, for the purpose of repairing the highway elsewhere.
    
      Thomas V. Russell, for appellant.
    
      Edward H. Neary, 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. Saddler (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 inequalities 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.

Landón and Ingalls, JJ., concur.  