
    The People ex rel. George F. De Groat, Relator, v. H. H. Marlett, as Commissioner of Highways of the Town of Laurens, Respondent.
    (Supreme Court, Otsego Special Term,
    June, 1903.)
    Highway — Abandonment — Removal of obstructions — Mandamus.
    The Highway Law (L. 1890, ch. 568, § 99) does not authorize a commissioner of highways to file a certificate that a highway has been abandoned unless it has not been worked or used at all during six years last past.
    It cannot be declared abandoned merely because bars and gates have been placed across it for accommodation of the abutting owners.
    Where obstructions have been placed across the highway mandamus is the proper remedy by which to compel the commissioner to remove them and attach it to the proper road district.
    Application for a peremptory Writ of mandamus.
    Charles H. Seeley (Albert F. Gladding, of counsel), for relator.
    Gibbs & Wilbur (Albert C. Tennant, of counsel), for respondent.
   Forbes, J.

This is a proceeding under an alternative writ of mandamus to compel the defendant, as commissioner of highways, to remove obstructions from a public highway in his said town, to open the same, and attach said highway to the proper road district.

I am satisfied that the commissioner of highways had and acquired no jurisdiction to make the order declaring the highway in controversy abandoned. Beyond any dispute, said road was one of the public highways of the town of Laurens and had been used and worked to some extent for forty years prior to the making and filing of the order of abandonment.

The respondent attempts to justify his order under the Highway Law. 1 R. S. (9th ed.) 704, § 99.

A certificate of abandonment under that law may be made and filed only when the facts are undisputed and there has already been an actual abandonment of the highway, for at least six years next prior thereto. The respondent, therefore, acquired no jurisdiction over the subject-matter and had no authority to act, within section 99 of said law.

Having obtained no jurisdiction over the subject-matter of the proceeding, his acts were null and void, and .can, therefore, be attacked in a collateral proceeding. People ex rel. Miller v. Griswold, 67 N. Y. 59; Beardslee v. Dolge, 143 id. 160; Miller v. City of Amsterdam, 149 id. 288, 298; O’Donoghue v. Boies, 159 id. 87, 99; People ex rel. Village of Brockport v. Sutphin, 166 id. 163, 170.

The road sought to be abandoned was still a highway, within the cases of City of Buffalo v. Hoffeld, 6 Misc. Rep. 197; Horey v. Village of Haverstraw, 124 N. Y. 273; Excelsior B. Co. v. Village of Haverstraw, 142 id. 146; City of Niagara Falls v. N. Y. C. & H. R. R. R. Co., 168 id. 610, 625. The statute does not prescribe how well or how much the highway should be worked; if open and worked at all within the period required by law it will not lose its legal existence. Marble v. Whitney, 28 N. Y. 297; Townsend v. Bishop, 61 App. Div. 18; City of' Buffalo v. D., L. & W. R. R. Co., 68 id. 488.

If the action taken by the commissioner of highways was absolutely void, an action against the respondent for a false return could not, probably, be maintained within People ex rel. Miller v. Wurster, 149 N. Y. 549. It cannot be declared abandoned because bars and gates are placed across the public highway for the accommodation of the owners on both sides thereof. McCarthy v. Whalen, 19 Hun, 503; S. C. affd., 87 N. Y. 148.

The placing of gates and bars across the highway shown in the present proceeding, under the evidence, was a continuous recognition of the right of the public to travel upon and use said highway.

A public highway ought not to be declared abandoned or closed without the consent of persons living upon and using the same for ingress and egress to and from their residences. Such persons ought not to be compelled, nor have they any right, to cross the lands of their neighbors to get upon another public highway.

The defense that the plaintiff has a remedy at law must be pleaded to be available. Lough v. Outerbridge, 143 N. Y. 271; Wakeman v. Wilbur, 147 id. 657.

The writ of mandamus is the . proper remedy under the facts in this case. People ex rel. Huntley v. Mills, 109 N. Y. 69. It is, therefore, the defendant’s duty to remove the obstructions from said highway and attach the same to a road district.

A peremptory writ of mandamus should he issued in this proceeding to compel the respondent to reopen said highway, remove the obstructions therefrom, and attach the same to a road district.

Judgment, therefore, is ordered in favor of the relator against the respondent, with the costs of this proceeding.

Judgment accordingly.  