
    THE PEOPLE ex rel. HERMAN THOMAS and Others, Respondents, v. THE COMMISSIONERS OF HIGHWAYS OF THE TOWN OF MILTON, Appellants.
    
      Mandamus — Commissioners of Highways — Powers and Duties — Application for New Road.
    
    The question whether two applications made to the Commissioners of Highways were in reality but one application, the latter intended as a correction of the former, is one of fact, to be determined by the finding of the Court below, with which the Appellate Court has nothing to do.
    The Commissioners of Highways, in laying out a new road, may locate it in part upon an old road-bed. The principle which will authorize the intersection or crossing of an old road by a new one embraces the whole ground of locating a new road upon an old road-bed.
    The Respondents applied for an alternative mandamus to compel tke Defendants to open a certain highway in the town of Milton, which the commissioners refused to lay out and open, and which, upon an appeal from the order of the commissioners, had been ordered by referees to be laid out and opened. The Defendants answered, setting up certain objections; and upon the hearing before the Judge at Special Term, it was ordered that a peremptory mandamus issue, directing the Defendants to lay out the road.
    This judgment was affirmed at the General Term. The Defendants (the Commissioners of Highways) thereupon appealed to this Court. The facts are sufficiently stated in the opinion of the Court.
    
      George G. Scott for Appellants.
    
      A. Pond for Respondents.
   Hunt, J.

Apjdication was made to the commissioners of highways of the town of Milton, in the county of Saratoga, to lay out a highway, of the width of three rods, upon a centre line described.

The proposed road, as described in the application and in the final order, commenced at the centre of an existing highway, at a point sufficiently designated, thence by courses and distances “to the centre of the highway leading from Jamesville to Howard’s Corners; thence following the public highway to a stake standing on the east line of the highway, south, &c.thence south across the lands of individuals named, and by courses and distances to the point of termination. The course, “ thence following the public highway,” carried the proposed road, for about a half a mile, on the bed of a then existing highway.

The commissioners refused to lay out the road thus applied for. Two orders of refusal were made, and appear in the case, each signed by two commissioners only.

The last order recites that, although concurred in by but two of the commissioners, the third had notice of the meeting, and signed the notice to the occupants of the land of the time and place at which the proceedings would be heard. The first order does not contain this recital. In other respects they are identical.

An appeal was taken from this determination to the County Judge, who, under the statute, appointed referees to hear and determine the appeal, who did “order, adjudge, and determine, in pursuance of the said application of the said Andrew Taylor1, that a highway be, and the same is hereby, laid out as follows ”— following the language of the application in the description of the road. The commissioners of highways still refused to lay out and open the road, and application was made for a mandamus to compel them to do so.

After a hearing at the Special Term, the Judge directed the issuing of a peremptory mandamus. The commissioners appealed to the General Term, where the order was affirmed, and they now bring their appeal to this Court.

The points made by the Appellants, to which it will be necessary to refer, are as follows: First. It is said that the application was for laying out two roads — one west of the existing highway, on which the new road was proposed to be laid; and the other east of it, and being the easterly end of the proposed road. In confirmation of this argument, the Appellants refer to the two orders of-the commissioners refusing to lay out the road, and insist that such orders were decisions upon an application for two separate roads. This proceeding they insist is illegal. The Belator insists that there was but one application for a single road, and that the one order was a correction of a former order on the same determination. This proposition involves a question of fact rather than of law, and cannot properly come before this Court. The Judge at the Special Term held that there was but a single application, and that it was for one road only, and not 'for two roads. The General Term were of the same opinion. If our opinion differed from this it would be of no avail, as we have no jurisdiction over a question of fact thus presented. I entertain no doubt, however, that this point is not well taken. The applicant desired a road to be laid out and opened which should commence at the bottom of the Morris hill, near to the Jamesville road, thence along that road to the Greenfield crossing, thence over the lands of owners named to its termination, and all as one road and one proceeding. The applicant evidently supposed that it was legitimate to include a portion of the old highway in his proposed road, and did so include it. The making and filing of two orders by the commissioners is naturally explained by the fact, appearing upon their face, that the one is a correction of the other, in reciting that the commissioner who did not concur had been notified and taken part in the proceedings. There was but one determination by the commissioners, and but one review and decision by the referees.

The validity of the proceeding is attacked, in the second place, upon the ground that the proposed road included a portion of a highway already in existence. The counsel for the Appellants, in his first point, says: “ It may be conceded that a new highway may intersect an old one, follow it for a convenient distance, and then resume its course. This may happen when it is apparent that the two parts, although interrupted for a short distance, were intended as one continuous imite. But the identity must remain.” It is difficult to deny the power of the commissioners to lay out a new road, which, in its course, crosses an existing highway. To cross it would occupy three or four, or six rods of the old road. If it may be occupied to that extent in crossing, it may be occupied to the same extent in a lengthwise direction.

There is no more of sanctity in a road in the direction of its length, than in that of its breadth. If it may be occupied for four rods, where is the principle which prevents its occupation for eighty rods, or for a hundred and sixty, as in the present instance ? When the Appellants concede that the new road “ may intersect the old one, follow it for a convenient distance, and then resume its course,” I think the whole question is conceded.

The. power being admitted, it becomes a question for the commissioners in the first instance, and for the referees upon the appeal, to determine what-is a convenient or suitable distance for the occupation of the old road, and when it becomes suitable and proper that the new course should be resumed.

Each ease will depend upon its own facts, arising from the nature of the ground, the amount and course of travel, present and prospective, the character and direction of the existing avenues, the expense to be incurred or diminished, and numerous other circumstances properly within the judgment of the commissioners or referees. No two cases can be exactly alike, and it is the object of the statute to submit all these questions to the determination, first, of the public officers of the town; and next to the revision of three freeholders from adjoining towns, having no interest in the subject-matter, to whom it is intrusted as referees. The judgment and discretion of these tribunals is conclusive, unless some rule of law has been violated in reaching their conclusion, or there has been some dereliction of duty. In the present case nothing appears which would justify us in interfering with their action upon the point now under consideration.

It is further insisted this judgment should be reversed, because, as it is alleged, there has been no survey of the entire road, and that it is not all laid out by courses and distances. I do not discover any evidence in the ease that there has not been a survey of the entire road. A part of it is described by courses and distances, and a part of it by reference to a substantial monument, to wit: a qmblic highway. It woxxld be quite forced to infer, as a legal result, that the part described by monuments bad not been surveyed.

The commissioners are required, if tbey determine to lay out a highway, to “ make out and subscribe a certificate of such determination, describing the road so laid out particularly, by routes and bounds, and by its courses and distances, and shall deposit the same with the town clerk” (1 Rev. Stat. 515; 474 Statutes at Large, § 63). This section regulates the action of the commissioners, and does not in terms apply to the referees appointed by another statute.

It regulates their action only in the event of their determining that the highway shall be laid out, and that determination was not made in this case. I think it may be said, also, that the referees have fairly complied with this provision, assuming that it was intended to govern their action. A highway is a monument, as well recognized, as permanent, and as intelligible as a river, a bridge, a mountain, or a building. It is more permanent, less liable to become confused or buried by the lapse of time, than a location based upon measurements and the precise indications of the mariner’s compass. A description by reference to an established highway is a description by routes and bounds,” and a • sufficient compliance with the statute, if the provision should be deemed to be imperative rather than directory (Woolsey v. Tompkins, 23 Wend. 324; People v. Taylor, 34 Barb. 481; People v. Shepard, 36 N. Y. R. 285). It is not required that every portion should be laid out by measurement and courses, but a portion may be thus described, and other portions maybe designated by other permanent bounds, routes, or monuments. The width of the road was sufficiently declared by the reference to the application and the adoption of its terms (Harris v. Commissioners, 2 Hill, 443; People v. Nevins, 1 Hill, 154; Jackson v. Freer, 17 John. R. 29).

Judgment should be affirmed.

All concur.

Affirmed.

JOEL TIFFANY, State Beporter.  