
    The City of Rochester, Appellant, v. Patrick J. Gray, as Commissioner of Highways of the Town of Livonia in the County of Livingston and State of New York, Respondent.
    Fourth Department,
    July 6, 1909.
    Constitutional law — chapter 1018, laws of 1895, authorizing city of Rochester to take shores of Hemlock lake valid — highways — discontinuance — property not taken without due process of law.
    Chapter 1018 of the Laws of 1895, authorizing the city of Rochester to acquire the shores of Hemlock lake so far as necessary to prevent, the pollution of the city water supply, and to change highways within the portions taken without the consent of the town commissioner of highways, does not violate section 18 of article 3 of the State Constitution prohibiting the passing of any private or local bill laying out,, opening,, altering or discontinuing highways, ■
    This, because the real object of said statute was not to changé highways, but to effect a public improvement to protect the public health, the change of highways being a mere incident to the accomplishment of that end. The constitutional provision was designed to prevent the passage of acts having a change of highways as their primary object.
    Said act does not violate section 16 of article 3 of the State Constitution which prohibits the passage of private or local hills embracing more than one subject and requiring that subject to be expressed in the title.
    As thé city of Rochester owned the fee of the discontinued highway and was the only one entitled to the use and possession of the land, no one was entitled to any damage by reason of the discontinuance, and hence said act was not unconstitutional in depriving persons of property without due process of law.
    As highways belong not to a town, but to the State, which holds them in trust for the people at large, the town was not entitled to damages by reason of the discontinuance of the highway.
    Appeal by the plaintiff, The City of Rochester, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 25th day of January, 1909, upon.the decision of the court, rendered after atrial at the Livingston Special Term, dismissing the complaint upon the merits.
    
      William W. Webb and B. B. Cunningham, for the appellant.
    
      Edwin A. Nash, for the respondent.
   Williams, J.:

The judgment should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was brought to restrain the commissioner of highways from doing work upon what he claimed was a highway of his town. The city claimed the highway had been legally discontinued and that the commissioner was attempting to reopen it. The highway was closed under the provisions of chapter 1018 of the Laws of 1895, authorizing the appointment by the Supreme Court of three commissioners to acquire for the use of the city of Rochester the shore of Hemlock lake, or so much thereof within 200 feet of the water line as they should determine was necessary to prevent the pollution of the water supply of the city. By section 2 of the act it was provided : “ If it shall be necessary for the purposes of this act, such commissioners may take any highway or portion of a highway within the limits described in section one [200 feet of water line] but they shall reconstruct any such highway in a manner satisfactory to the highway commissioners of the town in which it is located, and so ■ as not to materially interfere with the public travel, and may acquire the necessary land therefor, by agreement with the owners thereof, or if unable to so agree, by condemnation.” The commissioners were duly appointed and entered upon the performance of their duties under the act. Among other things they determined pursuant to section 2 of the act that it was necessary to take the highway in question, which ran along the water’s edge. They, therefore, took the highway and purchased land further back from the .shore, and reconstructed the highway thereon. They reconstructed the highway in a first-class manner, better than the one taken, and it was approved as to its manner of construction by the commissioner of highways, but he did not consent to the taking of the old highway or the construction of the new one. In fact, the commissioners proceeded in accordance with the terms of the act of 1895.

First, the question is whether the Legislature had power to authorize the change of highway without the consent of the commissioner of highways of the town, in view of section 18 of article 3 of the Constitution of the State which among other things provided that the Legislature should not pass'any private or local hill laying out, opening, altering, working or discontinuing roads, highways or alleys or for draining swamps or other low lands. .

The trial court held that the act of 1895, in so far as it authorized the taking and reconstructing of the highway in question was unconstitutional, and on that ground dismissed plaintiff’s complaint. I do not think the decision can beupheld upon the ground stated in the opinion of the trial court. (60 Misc. Rep. 591.) Only one case was. cited to sustain his. view and that seems not to afford much support, viz., Swikehard v. Michels (8 Misc. Rep. 568; affd., 81 Hun, 325 and 144 N. Y. 684, on opinion of the judge whotried-the case). I suppose the law is-thaj; when, the real-object of-the statute is not the change of highways, but such change-is merely an incident to the accomplishment of some public improvement or purpose for which the law was passed,-then any change in highways which may .become necessary in furtherance of the main purpose is-not prohibited by this provision of the Constitution. The. provision was designed to prevent -the passage of acts- which had for their primary object the change of highways. Several acts, have been passed for the benefit of Hew York city to furnish and increase its water supply and for park purposes-which are in substantially the same form as the one we are considering and which involve the taking of highways and constructing new ones in their place, and if this act is' in violation of the Constitution those acts are also, and yet great improvements have been and are being made under them and roads, discontinued-and' new ones constructed in-their places .¡the same as this road has been taken and a new; one constructed.' The question does not appear-often to have been raised or considered by -the- courts.

■ In Matter of Gilroy (43 App. Div. 35,9-;. affd., 1-64 H. Y. 576) highways of considerable length were taken and new ones opened in their place in the construction of -a. reservoir. - Ho claim was made that the act under which this was done was unconstitutional.. The main question involved related to the maintenance of the new highways, whether it should, be. by, the city of Hew York or the town in-which they were located.

The case above referred' to, Swikehard v. Michels, involved the same constitutional provision as this case does, only it related to the draining of swamps and low lands. The main purpose of the act there was the construction of a sewer in certain wards, of the city of' Eochester and the town of Gates adjoining. That was necessary for the public health and was a. public purpose. The act -'was a local ¡and private one within the words used in. the Constitution, and was claimed, therefore, to be unconstitutional because it practically provided for the drainage of swamps and low lands. The construction of the sewer would in fact drain swamps and low lands. .The opinion then stated that a local bill that has for its sole or main purpose the draining of swamps or low lands, although required for the public health, might be' unconstitutional (though this would be open to argument if necessary to deny it in this case), but where the construction of a sewer required to preserve the public health becomes necessary the fact that more or less water is drawn from a low piece of ground does not render the act unconstitutional which provides for the construction of the sewer. The title of the act purported to provide for the construction. of a sewer, which was clearly within the power of the Legislature, and the question was whether its real purpose was correctly stated in the title or whether its real purpose was the drainage of the swamps and low lands. It was apparent that the real purpose was correctly stated in the. title of the act and, therefore, it was constitutional, though in effect the sewer would drain swamps and low lands. The opinion did discuss the question whether the court would go beyond the language of the act to ascertain the real purpose thereof, but when the real purpose'was ascertained to be a legitimate one the fact that other things would result that were merely incidental to the main purpose would not render the act unconstitutional. In the present case there can be no doubt as to the real purpose of the act. It was to protect public health and prevent pollution of the source of water supply of the city of Rochester. This was a legitimate purpose and within the power of the Legislature to provide for. The taking of the highways and the reconstruction of these in other localities was merely incidental. It was not certain it would become necessary at all. It was found -that it was necessary. This provision did not render the act unconstitutional any more than similar provisions in the acts affecting the water supply for Hew York city, to which I have referred, rendered those acts unconstitutional. The- provision was not designed to cover such changes of highways as were merely incidental to public, necessary improvements.

Second. The act is not in violation of section 16 of article 3 of the Constitution in embracing more than one subject, not expressed in the title. It had but oiie object, the changing of highways being merely incidental to the main purpose of the act. (People ex rel. Stupp v. Kent, 83 App. Div. 554, 557; People ex rel. Village of Brockport v. Sutphin, 166 N. Y. 163; Economic P. & C. Co. v. City of Buffalo, 195 id. 286.) The latter case is clearly distinguishable from this.

Third. It is said that the Legislature had no power to authorize the taking of this highway, for the purposes stated' in the act, because it belonged to the people and the statute violated the" provision of the Constitution that no person should be deprived of his property without due process of law. (Art. 1, §• 6».)

The city of Rochester was owner of the fee of the lands over which the highway taken passed. Upon the discontinuance of the highway the city became' entitled to the use and possession of the land, and no one was, therefore, entitled to any damages. The town was not, because it had no interest as a town in the highway or the land. The highway belonged to the State and not to the town. (People ex rel. Metropolitan St. R. Co. v. Tax Comrs., 174 N. Y. 417,443.) The State held the highway in trust for the people at large.

In People v. Kerr (27 N. Y. 188,192) it was said : “ So far as the existing public rights in these streets are concerned, such as the right of passage and travel over them as common highways, a little' reflection will show that the Legislature has supreme control over them.' When no private interests are involved or invaded the Legislature may close a highway and relinquish altogether its use by the public, or it may regulate such use or restrict it to peculiar vehicles or to the use of particular motive power. It may change one kind of public use into another, so long as the property continues to be devoted to public use. What belongs to the public may be controlled and disposed of in any way which the public agents see fit.” This language was quoted in Matter of Gilroy (supra) and- the court held that under this authority it was clear that the Legislature had the power to provide for the closing of the old and the substitution of the new highway without imposing upon the city of Rew York, for whose benefit the change was made, the expense of maintaining the new highway. It has been held that the Legislature has power to pass an act closing streets in Rew York city and that such, act would not be unconstitutional because it did not provide compensation to the owners of adjoining property, where another street is left, giving access to such lands, and that its authority is equally clear to employ such agency as it sees fit and to prescribe the method of procedure for such a purpose. (Fearing v. Irwin, 55 N. Y. 486; Reis v. City of New York, 188 id. 69.)

This highway ran along the lake shore to connect different parts of the town and for such purposes the new highway was as good or better than the old one. The lake as a, highway still remains and access to it is not cut off. There are many other means of access to it besides this old highway, which was never designed as a means of access to the lake and the public have no interest to retain the highway for that purpose. The commissioner of highways of the town had control and supervision of this highway, not as a means of access to the lake, but only as connecting different'parts of the town. Such commissioner has nothing to do with the lake as a highway.

I do not think these objections to the validity of the act are well taken.

My conclusion is that the judgment should be reversed.

All concurred.'

Judgment reversed and new trial ordered, with costs to appellant to abide event.  