
    In the Matter of W. F. WILEY for a Commission.
   Barnard, P. J.

This appeal is from an order appointing a commission upon the petition of another landowner oil John street. This petitioner only owned land on the old street where the village had never established a grade before the extension. On the Bartlett appeal we held that the old street was taken as an established highway when the village was incorporated, and that a subsequent change of grade was within the act. The street was lower from one and a-half to four feet. The petitioner’s right to a commission is thus established, and the extent of the injury is for the commission. The other defense to the granting of the petition is, that there is an action pending, brought by petitioner against the village. There is no conflict between the two proceedings. The action is for an injury to the petitioner’s possession of the land on the street. The village pleaded that it was a highway in 1811, and has been ever since. In this proceeding it is admitted that John street (the old part) was an open public street when the village was incorporated, about the year 1811, and it has been used as such until this time. The commissioners are to assess the damage to the land adjoining such highway.” The action thus affects the injury to the land in the highway, and the other proceedings the land adjacent.

The order, therefore, was right and should be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.  