
    Walter Kubak, Plaintiff, v. Benjamin C. Halsey, as Superintendent, etc., et al., Defendants.
    (Supreme Court, Suffolk Special Term,
    June, 1914.)
    Highways — taxpayer’s action to enjoin town officials from proceeding with the widening of a highway—(Highway Law, § 200.
    It is not every yard or inclosure through or upon the borders of which a highway may not be laid out except upon judicial sanction; it is only where the yards or inclosures affected are “ necessary to the use and enjoyment ” of the contiguous dwellings or buildings.
    Where in a taxpayer’s action to enjoin town officials from proceeding with the widening of a highway the claim is made ' that the improvement involved a taking of yards or inclosures in two out of many pieces of property along the highway, and therefore confirmation by the court is required by section 200 of the Highway Law, but only a small diminution of country door yards or lawns is ordered in the course of the widening proceeding on due compensation to the owners, defendants are entitled to judgment for a dismissal of the complaint.
    Issue of fact tried at Special Term. The plaintiff, asa taxpayer, brings this suit to enjoin the defendants, as town officials .of the town of Southampton, from proceeding with the widening of a highway known as the Old Mill road.
    Shaffer, Howell & Hinds, for plaintiff.
    Timothy M. G-riffing and Robert P. Griffing, for defendants.
   Kelby, J.

It is claimed that the widening involves a taking of yards or inclosnres, and therefore confirmation by the County Court and by the Appellate Division is required by section 200 of the Highway Law. The claim that yards or inclosures, are taken is made only in respect to two out of the many pieces of property along the highway. If the contention were valid, it would not be enough to warrant the halting of the public improvement entirely, but only in so far as it affects the complaining property. Beck v. Gibbard, 140 App. Div. 745. On the evidence it does not appear that there is any reason why the improvement should be halted at all. It is not every yard or inclosure through or upon the borders of which officials may not lay out a highway, except upon judicial sanction of their proceedings. It is only, as the statute says and authority holds, where the yards or inclosures affected are “ necessary to the use and enjoyment ” of the contiguous dwellings or buildings. Lansing v. Caswell, 4 Paige, 522, 523. The Cutler farm fronts about 500 feet on the Old Mill road. The plaintiff is Cutler’s farmer, or gardener, and occupies a cottage situated about twenty-eight feet back of the highway. The widening requires the taking of a triangular strip about one hundred and forty-five feet in length and from seven feet down to nothing in width. The other property, owned, by one Bauscher, is farther along the road. It has about three hundred.and fifty feet frontage and there is a cottage, occupied by his gardener, situated about seventy feet back of the highway. Here there is taken a strip varying in width from about .eight feet to two feet. The cultivated portions of the farms, still farther back of the highway, are not touched at all. It is testified that the space between the cottages and the highway is used in both cases as front door yards or lawns. This is a rustic road along which land appears to be plentiful, and where there is no uniformity of improvement or in building lines, as usual on a city street. So we have only the case of a small diminution of country door yards or lawns ordered, on due compensation to the owners, in the course of a public improvement. There are no facts from which it can be said that the door yards or lawns, undiminished, are necessary to the use and enjoyment of the cottages, unless that is to be held as a matter of law, which, indeed, is not contended. There is nothing to show that the widening of the highway would lessen the use, enjoyment or access, or to oppose the presumption that the widening of the highway would be an improvement in those respects. Judgment for the defendants dismissing the complaint.

Judgment for defendants.  