
    THE PEOPLE ex rel. VAN SICKLE v. HENRY ELDREDGE, Justice of the Peace, etc.
    
      Highway—meamre of damages in laying out—jury in such proceedings judges of law a/nd fact — Justice of the peace not required to charge jury.
    
    In determining the damages sustained by the owner of gypsum upon, and of the right to raise and remove the same from, lands over which a highway is to be laid out, the difference between the value of the claimant’s estate or interest without the road, and its value with the road, is the true measure.
    In statutory proceedings for the reassessment of damages for laying out a highway, the jurors are judges of the law and fact.
    A justice of the peace is not required to charge the jury in an action tried before him.
    A common law certiorari issued on the petition of Win. H. Van Sickle, to review proceedings had upon assessment of damages by laying out a highway. One James Fitch was the owner of certain gypsum, and the right to remove it from the land over which the highway was laid out.
    
      James Ii. Cox, for the relator.
    By the appropriation of land for a highway, the public acquire only the easement, and no interest in the soil, or in the rock below it. (3 Kent’s Com., 432, 433, and in many eases cited under notes c and i; Dunham v. Williams, 36 Barb., 136.) Since Fitch is not the owner of the premises, and his damages, if any, are only incidental and consequential, it is quite doubtful whether he is entitled to recover any damages. (People v. Oneida, 19 Wend., 102.) FT o t withstanding the highway, Fitch would have the right to dig his plaster at pleasure, upon providing for and protecting the public easement. (Williams v. Kenney, 14 Barb., 629; Cortelyou v. Van Brundt, 2 Johns., 357; Jackson v. Hathaway, 15 Johns., 447; Galen v. Clyde, 27 Barb., 543; McCarthy v. Syracuse, 46 N. Y., 199.) The justice erred in refusing to instruct the jury as to the law, as requested by the counsel on the part of the town: that Fitch is not deprived of his plaster, nor does the town acquire it; that he will have the right to dig it; that all his damages are the expense he will be subjected to in preserving the highway while digging his plaster. This being the subject debated before the jury, and the justice refusing to instruct them as requested, was equivalent to informing them that the contrary was the law. Assuming, therefore, that Fitch has the right to dig out that particular plaster right away, the question is, not what the plaster is worth, but what damages he will sustain from the inconvenience, if any.
    
      K. Wood, for the defendant.
    It is well settled that there may be two separate freeholds in the same body of earth measured superficially and perpendicularly down toward the center of the earth, a freehold in the superficial soil, and a freehold in mines underneath this, with the right of access to work the same and extract the minerals there found. (Washburn’s Easements and Servitudes [2d ed.], pp. 7, 14, 558; Caldwell v. Fulton, 31 Penn., 475; Zinc Co. v. Franklinite Co., 13 N. J., 341, 342; Grubb v. Bayard, 2 Wallace, Jr., 81; Wilkinson v. Proud, 11 Mees. & W., 33; Robotham v. Wilkinson, 8 Ellis & B., 123, 142; 1 Penn., 726; 7 Cush. [Mass.], 361; 8 id., 21; 5 Mees. & W. Exch., 50.) The difference in the market value of the property before the road was laid out and the market value after it was laid out, was the correct rule. (Matter of Hamilton Avenue, 14 Barb., 415; Matter of Furman Street, 17 Wend., 649, Bronson, J.; Troy & Boston R. R. Co. v. Lee, 13 Barb., 169; Thompson on Highways, 194.) The justice properly refused to charge the jury as requested. It'is no part of the justice’s duty to charge the jury in such cases. The request to charge wras erroneous, as Fitch was the owner of a freehold estate in" the lands over which the new road was laid out.
   Dwight, J.:

The claimant was the "owner of the gypsum or plaster upon the lands over which the road was laid out, with the right to mine and remove the same. This was an estate or interest in the lands, distinct from that of the owner of the soil, which gave to its possessor an undoubted right to damages to the extent to which his estate or interest was injuriously affected by the laving’ out of a highway over such lands. The measure of damages apparently adopted by the jury, was the correct one, viz., the difference between the value of the claimant’s estate or interest without the road, and its value with the road, as laid out.

Counsel for the relator urged that the claimant should be allowed only what it would probably cost him to remove the road from its official location while excavating the plaster beneath it, and to restore it to such location after the excavation was complete. Of course this is out of the question. " Ho individual is at liberty to deal in this manner with the highways of a town, and, after making an excavation of from eighteen to twenty-seven feet deep, it would be difficult to restore the road to its former condition.

It was no error for the justice of the peace to refuse to charge the jury, even if it had been good law that he was requested to charge. Ho justice of the peace is required to charge a jury in an action tried before him. But in this statutory proceeding for the reassessment of damages, the jury are especially the judges both of the law and the fact. The duties of the justice are mainly, if not wholly, ministerial. He can hardly be said to act judicially in any part of the proceeding. He issues his summons for twelve persons, already selected without his intervention, as jurors; draws by lot six of the number to act in the • proceeding; administers the oath to them, and to the witnesses produced before them, and'certifies their verdict to the commissioners of highways. The jury view the premises, hear the parties and witnesses, and render their verdict under their hands, “ and the same shall be final.”

It is only in case of manifest irregularity in the proceedings, or of clear violation of principle in the assessment of damages, that such a verdict will be disturbed. No such error or irregularity seems to have occurred in this case. The writ of certiorari will be quashed, and the proceedings confirmed.

Present — Mullin, P. J., Smith and Dwight, JJ.

Writ quashed, and proceedings confirmed. 
      
       Matter of Furman St., 17 Wend., 649; Troy & B. R. R. Co. v. Lee, 13 Barb., 169.
     
      
       Laws of 1847, chap. 455, §§ 4, 5, 6.
     