
    Nelson H. Duryea, Resp’t, v. Tredwell D. Smith et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Highways—Trespass—License.
    Plaintiff agreed to sell certain land adjoining a highway to one W., who agreed to let the highway commissioners take gravel therefrom for the highway for a certain sum per load. Before any was taken W. failed to complete his purchase and plaintiff forbade the entry of the commissioners. Held, that the agreement with W. was a mere license, which would be operative only after it was executed; that such license was revoked by plaintiff’s notice, and that an entry thereafter by the commissioners was a trespass for which they were liable.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      Action to recover $500 for an alleged unlawful entry upon plaintiff's lands, the removal of building sand therefrom and the destruction of a fence.
    The answer put in issue plaintiff’s ownership of the land; admitted that defendants took the sand in question, but excused the act by alleging that they were highway commissioners and committed the acts in question as such commissioners under an agreement with one Wright.
    
      James S. Allen, for app’lts; Benj. W. Downing, for resp’t.
   Barnard, P. J.

The office of commissioner of highways does not protect the officer who commits a trespass. The defendants, therefore, had no right to enter upon private lands and take gravel therefrom, without the owner’s consent, to repair the road. The proof established that there was a public highway,, called Jerusalem avenue, in Queens county. It is now a road of the width of three rods. The plaintiff’s claim is that the commissioners took gravel from his lands. He owns both sides of the highway at the point of the alleged taking. The court charged the jury that the taking of gravel within the bounds of the highway for the purpose of repairing the road in other places was justified by these officers as commissioners of highways. Higgins v Reynolds, 31 N. Y., 151.

The proof established that the defendants took gravel from the plaintiff’s premises adjacent to the road; that the plaintiff had agreed to sell this land to one Wright. That the plaintiff referred the defendants to Wright to buy this gravel of him. Wright agreed to let the defendants have the gravel for ten cents a load. Wright failed to complete the purchase and the plaintiff, before any sand was taken from the premises under the arrangement with Wright, forbade the entry of the defendants upon his lands. The agreement with Wright was a mere license to enter and take sand at a certain price, which would only be operative after it was executed. The notice by the owner that Wright had ceased to have any interest in the land and that the defendants must not trespass thereon, revoked any right to take the sand under the Wright license. Wiseman v. Lucksinger, 84 N. Y., 31.

The throwing down the fence along the highway was a trespass if the entry was a trespass. The jury have found this fact, and the cost of the repair of the fence must follow the right to recover for the sand.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  