
    Cameron Beck, Respondent, v. George H. Gibbard, Individually and as Commissioner of Highways of the Town of Putnam, Washington County, Defendant, Impleaded with Alice E. Fenn, Appellant.
    Third Department,
    November 16, 1910.
    Highways — commissioner cannot alter description of proposed road — intersection of building by proposed highway — injunction.
    A highway commissioner has no authority to alter or enlarge a proposed highway as described in the report of commissioners appointed to lay it out, where the order of the County Court appointing the commissioners and their decision have been affirmed.
    It is the duty of the highway commissioner to lay out the road as described in the report, except that by virtue of section 200 of the Highway Law he cannot lay it out through a building unless especially permitted by the court.
    Hence, where the highway as located by the commissioners will intersect a house, but no proceeding under the statute for permission to intersect the building has been taken, the adjoining owner is entitled to an injunction restraining the commissioner from constructing that part of the road which will pass through his house. But the ¡inj unction should not restrain the opening of other portions of the highway, in the absence of proper proceedings to change the location.
    Appeal by the .defendant, Alice E. Fenn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 8th day of December, 1909, upon the decision of the court, rendered after a trial at the Warren Special Term, restraining and enjoining the defendant commissioner of highways from laying out, opening up or working a certain highway through plaintiff’s property; also from an order entered in said clerk’s office on the 19th day of August, 1909, continuing the preliminary injunction, and also from so much of an order entered in said clerk’s office on the 21st day of September, 1909, as continues said injunction during the pendency of the action.
    
      James F. Tracey, for the appellant.
    
      J. A. Kellogg, for the respondent.
    
      Willoughby L. Sawyer, for the defendant Gibbard.
   Smith, P. J.;

In August, 1906, defendant Penn applied to the County Court of W ashington county for .the appointment of commissioners to lay out a highway to her property and to assess the damages. Commissioners were thereupon appointed and the majority of them made' a decision in favor of the laying out of said highway. The plaintiff herein was a party to such proceedings and was by said decision awarded the sum of forty dollars damages. He thereafter made application to the County Court to vacate and set aside such decision, which motion was denied and the decision confirmed. He then applied to the Appellate Division, where the order of the County Court was affirmed and the decision of the commissioners confirmed. (See Matter of Fenn, 128 App. Div. 10.) This decision described the highway in question as being three rods in width and its center line as “ Beginning at a point in 'the southerly end of the public highway in the Town of Putnam leading from Gull Bay to the residence of George Smith, the said point being a little northerly of the gateway at the northwest corner of the said George Smith’s barn,” and running thence by various courses.and distances to the lands of the petitioner. By order filed July 8, 1909, the said commissioner of highways opened .and laid out a highway therein described, his description being the same as above quoted, but with tlie following addition: “ The said point of beginning being thirty (30) feet northerly of-a post which stood in the fence on the property of the said George Smith in 1906, at the time said survey was made at a point indicated and shown on the said map. The easterly line of said highway, so above described passing westerly of the cottages of Frank Tibbetts and Cameron Beck, and along the easterly line of the traveled path, and two rod right of way now existing there, and the westerly line of said highway passing easterly of the tennis court and of the library building, so-called.” The plaintiff’s complaint alleges that the proposed highway as described in the decision will intersect Iiis cottage, which allegation is denied in the answer of defendant Fenn. Upon the trial it was shown that the Gull Bay road mentioned terminated at an iron pin set in its center line, and that if the center line of the proposed new road started at this point, so as to make the two roads continuous, such proposed new road would intersect plaintiff’s cottage. The defendant contends, however, that he intends to lay out the road on the line of a survey made hy one Watts, according to which the starting point of the center line of the new road is not at the iron pin mentioned, but about twenty-four feet westerly thereof, at the side of the Gull Bay i;oad, although still in the southerly end thereof, and that he accordingly does not intend to locate the highway so as to interfere with plaintiff’s dwelling. It is conceded that no proceeding had been taken under section 90 of the old Highway Law (Gen. Laws, chap. 19 [Laws of 1890, chap. 568], as amd. by Laws of 1906, chap. 265), section 200 of the Highway Law of 1908 (Laws of 1908, chap. 330), which took effect on January 1, 1909, or section 200 of the present Highway Law (Consol. Laws, chap. 25; Laws of 1909, .chap. 30) to lay out a highway through plaintiff’s dwelling house.

We think the learned trial judge was right in holding that the highway commissioner had no authority to alter or enlarge the description of the highway as made by the commissioners appointed to lay it out. He was authorized to open up only the highway described by the commissioners, and consequently any added words of his which would have the effect of modifying or altering the description by them laid down must be held as of no effect. It was adjudicated in the former proceeding that the road described in the commissioners’ report was necessary, and that it was definitely described in the report. If then the description of the commissioners as to the location of the road is examined, it would seem to be the only legal inference that, as further held by the trial court, the point in the termination of the old road at which the center line of the new road is to commence must also mean the center line of . the old road as well, so that the two roads shall be continuous and not meet with an offset or jog of about one-half the width of the new road as is claimed by appellant. The present difficulty undoubtedly arose from a failure to locate properly the center line of the old road at its termination. This was erroneously taken to be west of its true location, as afterwards shown in this action to be fixed by an iron bolt, and consequently the first course laid down was different from what it would have been had the starting point been properly located. There "is nothing, however, either in the petition or the commissioners’ report from which a different first course can be legally inferred by us, and inasmuch as the starting point mentioned in the decision refers to a point capable of correct location the road cannot now be elsewhere located. Unless the road as ordered be altered by some new proceeding it is accordingly the highway commissioner’s duty to lay out the road as described in the report, except that by section 200 of the Highway Law he cannot lay it out through this building until specially permitted by the court. Upon an application for leave to lay a road through this house the court could perhaps make some fair adjustment by consent of parties. Damages have, as stated, been awarded Hr. Beck in the sum of forty dollars. If an application should be made to lay the road through the land occupied by the house it is not'necessary here to decide whether he could be allowed any further damages than have been awarded in the order already made. In Matter of Field (61 App. Div. 618) it is held that a road should not be laid out through a house or garden when the owner offers a full right of way elsewhere which is but a few rods out of the direct course.

The injunction should be modified so as to enjoin the commissioner of highways from constructing that part of the road which passes through plaintiff’s house, and as thus modified the order should be affirmed.

Judgment modified as per opinion, and as so modified judgment and orders unanimously affirmed, with one bill of costs to respondent.

Houghton, J., not sitting.,  