
    Edward A. Schillawski et al., Appellants, v. State of New York, Respondent. S. E. B. Holding Corporation, Appellant, v. State of New York, Respondent.
    (Claim No. 32769.)
    (Claim No. 32760.)
    Argued November 16, 1960;
    decided March 2, 1961.
    
      
      Vincent A. O’Neil for Edmund A. Schillawski and others, appellants.
    I. There can be no presumption of a 99-foot highway over claimants’ properties. (Blackman v. Riley, 138 N. Y. 318; Matter of Rochester Elec. Ry. Co., 123 N. Y. 351; Miller v. Brown, 56 N. Y. 383; Saunders v. State of New York, 148 Misc. 712; Matter of City of New York [Brooklyn Ferry], 140 App. Div. 238.) II. No map of the Seneca Turnpike was filed in the Cayuga County Clerk’s office as required by statute. (Bromley v. Mollnar, 179 Misc. 713; Peckham v. Henderson, 27 Barb. 207; Harriman v. Howe, 78 Hun 280, 155 N. Y. 683; Goldrich v. Franklin Gardens Corp., 282 App. Div. 698; Harlow v. Humiston, 6 Cow. 189; People v. Judges of Cortland County, 24 Wend. 491; Talmage v. Huntting, 39 Barb. 654, 29 N. Y. 447; City of Buffalo v. Hoffeld, 6 Misc. 197; Marvin v. Pardee, 64 Barb. 353.) III. The statute was not complied with regarding the acquisition of title to a 6-rod roadbed. (Matter of Water Commissioners of Amsterdam, 96 N. Y. 351; Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444; Crouch v. State of New York, 218 App. Div. 356; People ex rel. Washburn v. Common Council, 128 App. Div. 44; Crisafulli v. State of New York, 198 Misc. 941; Bromley v. Mollnar, 179 Misc. 713.) IV. It does not appear that a 99-foot road was ever “laid out”. (People v. Judges of Cortland County, 24 Wend. 489; Iselin v. Village of Cold Spring, 120 App. Div. 576; Matter of Department of Public Parks, 86 N. Y. 437; Walker v. Caywood, 31 N. Y. 51.) V. The construction of the Seneca Turnpike statutes by the courts below violates the State and Federal Constitutions. (Sage v. City of Brooklyn, 89 N. Y. 189; Chapman v. Gates, 54 N. Y. 132; People ex rel. New York Cent. & H. R. R. R. Co. v. Priest, 206 N. Y. 274.) VI. Any right to a 6-rod right of way has long been abandoned. (Walker v. Caywood, 31 N. Y. 51; Mangam v. Village of Sing Sing, 26 App. Div. 464, 164 N. Y. 560; Barnes v. Midland R. R. Term. Co., 218 N. Y. 91; Driggs v. Phillips, 103 N. Y. 77; Shipston v. City of Niagara Falls, 187 App. Div. 421; Gucker v. Lewis, 249 App. Div. 858.) VII. Claimants’ properties were appropriated by the State. (People v. Sutherland, 252 N. Y. 86; Jones v. Cederquist, 1 Misc 2d 1020; Jones v. Delaware, L. & W. R. R. Co., 208 N. Y. 40; Rochford v. State of New York, 153 Misc. 239, 245 App. Div. 794; Reese v. State of New York, 190 Misc. 316; City of Buffalo v. Pratt, 131 N. Y. 293; Raymond v. State of New York, 4 A D 2d 62, 4 N Y 2d 961.)
    
      Joseph W. Bryan for S. E. B. Holding Corporation, appellant.
    Chapter 78 of the Laws of 1800 is unconstitutional, illegal and void. (Sweet v. Rechel, 159 U. S. 380; Sage v. City of Brooklyn, 89 N. Y. 189; Matter of Mayor, Aldermen & Commonalty of City of N. Y., 99 N. Y. 569; Brewster v. Rogers Co., 169 N. Y. 73; Litchfield v. Bond, 186 N. Y. 66; St. Regis Tribe of Mohawk Indians v. State of New York, 4 Misc 2d 110; Bloodgood v. Mohawk & H. R. R. R. Co., 18 Wend. 9; Matter of Rochester Elec. Ry. Co., 123 N. Y. 351; People ex rel. New York Cent. & H. R. R. R. Co. v. Priest, 206 N. Y. 274.)
    
      Louis J. Lefkowitz, Attorney-General {Jean M. Goon and Paxton Blair of counsel), for respondent.
    I. Present U. S. Route 20 in the vicinity of claimants’ properties is the Seneca Turnpike established by early State statutes and the State’s highway right of way in Route 20 in that area is 99 feet in width. (Leland v. Cameron, 31 N. Y. 115; People v. Diamond, 199 App. Div. 497, 233 N. Y. 130; Matter of Whitman, 225 N. Y. 1; Hamilton v. Erie R. R. Co., 219 N. Y. 343; Schieffelin v. Goldsmith, 253 N. Y. 243; Kane v. Walsh, 295 N. Y. 198; Matter of Magnotta v. Gerlach, 301 N. Y. 143; Columbia Distilling Co. v. State of New York, 183 App. Div. 345, 227 N. Y. 636; Youmans v. State of New York, 284 App. Div. 823, 309 N. Y. 653.) II. So long as any portion of the width of a highway right of way is opened for travel, the failure to use the remainder of the authorized width does not constitute abandonment of the unused portion of the right of way. (City of Cohoes v. Delaware & Hudson Canal Co., 134 N. Y. 397; Walker v. Caywood, 31 N. Y. 51; Niagara, L. & O. Power Corp. v. State of New York, 187 Misc. 527; 
      Beisheim v. People, 26 Misc 2d 684.) III. Appellants have no standing on this appeal to question the constitutionality of chapter 78 of the Laws of 1800. (Flagg v. Nichols, 307 N. Y. 96; Matter of Zellner [Brooklyn Trust Co.], 299 N. Y. 243; Leviten v. Sandbank, 291 N. Y. 352; Friedman v. Universal Mercerizing Co., 238 App. Div. 805; Bolivar v. Monnat, 232 App. Div. 33.)
   Dye, J.

These appeals, by our permission, involve claims for damages arising out of an alleged de facto appropriation of land for use in the reconstruction of a State highway known as U. S. Route 20, which runs in an easterly-westerly direction between the City of Auburn and the Village of Skaneateles. The subject properties are located on a highway east of Auburn. In the course of the work done in 1951-1952, the two-lane concrete sections of the road were widened from 20 feet to 48 feet. The appellants claim that in performing this work the State encroached on lands owned by them.

In the Court of Claims the issue turned on whether the lands in question were within the boundaries of a pre-existing highway easement. The State demonstrated that U. S. Route 20, in the controverted area, originally came into existence as a part of the Seneca Turnpike pursuant to chapter 78 of the Laws of 1800, and the trial court so found. That statute provided for the establishment of the Seneca Road Company and authorized it to build the Seneca Turnpike from Utica to Cayuga Lake and westward to Canandaigua. The statute provided for a right of way six rods in width. The road was to follow as closely as possible the road of the existing Genesee road, also six rods in width.

The extensive proof offered by the claimants to show that the Seneca Turnpike was not improved to its full width does not afford any basis for extinguishing the right to the portion not so improved. Where a road has obtained its character as a public highway by user, its width is determined by the width of the improvement (People v. Sutherland, 252 N. Y. 86; cf. Beisheim v. People, 26 Misc 2d 684). But where the road has been laid out under a statute, it is the statute and not the user that determines the width (Walker v. Caywood, 31 N. Y. 51 [1865]). Nor does the failure of the State to occupy the full width, or to improve the road in the manner provided, constitute an abandonment of the easement of the unused portion (Highway Law, § 205; Walker v. Caywood, supra; Beckwith v. Whalen, 65 N. Y. 322; Mangam v. Village of Sing Sing, 26 App. Div. 464, affd. 164 N. Y. 560). Indeed, the statute itself only required improvement over a width of 24 feet.

Marvin v. Pardee (64 Barb. 353), cited by the appellants, dealt with a situation arising under chapter 75 of the Laws of 1806, which was an amendment to the prior act, affecting the Seneca Road Company by requiring the Commissioners to file an accurate map or survey of lands acquired by them in the office of the clerk of the county through which the road passed. There being no proof of statutory compliance as to filing, the court found there was no satisfactory evidence of acquisition. Here, on the other hand, we deal with a situation arising under the Laws of 1800 and that, by its terms, required no filing. That point is, in any event, not decisive.

It was established as a fact, and so found, that Route 20 is the old Seneca Turnpike as laid out pursuant to chapter 78 of the Laws of 1800. Since the Seneca Turnpike was laid out under color of statute, it must be deemed that the State acquired a right of way by prescription to a width of 99 feet as provided for in the statute. This result is in accordance with the widely recognized rule that, where a highway is defectively laid out under color of statutory authority, it will be deemed to create a prescriptive right to the width prescribed by the statute, although greater than the extent of actual user (e.g., Pillsbury v. Brown, 82 Me. 450; State v. Auchard, 22 Mont. 14; McNab v. Town of Trenton, 55 N. S. 160, 63 D. L. R. 306, 13 B. R. C. 734; see 1 Elliott, Roads and Streets [4th ed.], § 193, and numerous cases cited). The statute was notice to all that the road was three rods in width on either side of the center line. In fact, these claimants’ own abstracts of title identify this road as the Seneca Turnpike and describe the property conveyed as beginning in the center of the turnpike road subject to the easement for highway purposes. In this light the appellants’ contention as to lack of payment is of no consequence. This being so, the alleged encroachment on the north being within the right of way, compensation was properly disallowed. The parcels lying on the south side of the highway were outside of the right of way. However, since the claimants had not established any measure of damages relating to that encroachment no award was made.

The attack on the constitutional validity of the Laws of 1800, raised for the first time in this court, need not detain us. We may consider only issues raised in the court below (Flagg v. Nichols, 307 N. Y. 96, 99). Even if we assume, for sake of argument, that the statute is defective, nothing could be gained by these appellants in having the statute declared invalid since, in any event, the State had acquired a valid prescriptive right of way of 99 feet in width under color of statutory right.

The judgments appealed from should be affirmed, with costs.

Fboessel, J. (dissenting).

I dissent and vote to reverse. Except as to an admitted 450-square-foot encroachment, for which no damages were allowed, the Court of Claims held that the State acquired a 6-rod, or 99-foot, right of way simply because the statute authorized the Turnpike Company (a private corporation for private gain [Matter of Rochester Elec. Ry. Co., 123 N. Y. 351, 356-357]) to lay out a road of that width. This position strikes me as completely untenable, since the same statute required the company to purchase or condemn needed land, where it was necessary to deviate from the G-enesee Road. Seneca Turnpike (now a part of Route 20) did, in fact, deviate from the Genesee Road along the route now in question; and the State introduced no evidence whatever that the company had purchased or condemned land, along the deviation, to a width of 99 feet.

I agree with the reasoning of the court in Marvin v. Pardee (64 Barb. 353, 358) that the Seneca Turnpike statutes were not intended to effect a transfer to the company of the title to land, which it had not obtained in one of the prescribed methods. The title to land is not thus ‘ adjudged and taken ’ from one party and vested in another ” (emphasis in original). Whether or not the applicable statutes required the Turnpike Company to file a map or survey, they all prescribed two methods for the acquisition of needed property, namely, purchase or condemnation. Hence the State was obliged to show that a 99-foot right of way had actually been laid out and pursuant to such statutory authorization.

The prevailing opinion holds that the State acquired a 99-foot right of way by prescription, and notwithstanding the fact that it never used anywhere near 99 feet. In 1912 the road was a ¡narrow, two-lane dirt road, later covered by gravel; in 1928 it consisted of a macadam pavement 12 feet in width. After the county, pursuant to State authority, acquired right of way parcels in the vicinity of appellants ’ property, all of which, as found by the trial court, were located in whole or in part within the 99-foot right of way, the county turned the highway over to the State, when it was widened to 20 feet, and remained so until 1952. Although the majority do not question the general rule that property may be acquired by prescription only to the extent it is actually used, they point to an exception apparently recognized in Montana and Maine, and reason that the company having acted “ under color ” of a statute authorizing the laying out of a 99-foot right of way, it follows that the State acquired a right of way by prescription to a width of 99 feet as. provided for in the statute.”

The difficulty with this argument is that the statute did not give the company a 99-foot right of way, but simply authorized it to lay out a road that width and acquire the necessary land by purchase or condemnation. To say that the State can acquire a 99-foot right of way by prescription simply by authorizing a road that width, and then having the private road company deviate and lay it out at a considerably lesser width without compensation or condemnation, is to sanction bald confiscation and violate appellants’ constitutional rights. This statute could not constitute notice ” as the majority maintain in justification of the confiscation here sanctioned. The only landmark mentioned in the statute which could serve to inform one of the route of the proposed highway was the Genesee Road. But at issue here is a deviation from that road, the nature and course of which deviation the statute in nowise indicates. Nor do any of appellants ’ title documents militate against his claim. Walker v. Caywood (31 N. Y. 51) is clearly inapposite in this case.

As to the issue of abandonment, we do not reach it if the State failed to prove it or its predecessors ever lawfully acquired a 99-foot right of way. While it may be argued that the State in failing to lay out a lawfully acquired road to its full authorized width does not thereby lose a portion of it by abandonment, we are here faced with a situation where the road was not lawfully acquired; hence nonuser is fatal (Matter of City of New York [Ludlow Ave.], 164 App. Div. 839; Gucker v. Lewis, 249 App. Div. 858; Cobb v. County of Monroe, 8 A D 2d 755). As already noted, no portion of the road here involved was ever opened to its full width as authorized 150 years ago, there was a definite deviation, no map or survey was ever filed showing a 99-foot easement, the visible markers on the road for over 20 years preceding the 1952 reconstruction indicated a two-lane road bounded by fences, and the county, pursuant to State authorization, purchased land in 1928 located within the 99-foot right of way now claimed by the State. If an abandonment—assuming it was involved here—was not made out, then it seems to me it could never be made out.

Accordingly, the judgments appealed from should be reversed, and the ease remitted to the Court of Claims for the assessment of damages, with costs to appellants.

Chief Judge Desmond and Judges Fuld, Van Voorhis and Burice concur with Judge Dye; Judge Froessel dissents in an opinion in which Judge Foster concurs.

In each action: Judgment affirmed.  