
    Isaac Snyder, Respondent, v. William H. Trumpbour, and others, Commissioners of Highways of the town of Saugerties, and John Plass, Appellants.
    Commissioners op highways. Laying out new roads. Res adjudicata. The decision in Snyder v. Plass (28 N. T. 465) is conclusive and controlling in this case, upon the main issue, to wit, that an order directing a new road, a part of which was over the bed of an old road, is not void because the portion over the old road was to be but two rods wide; nor because the line of one survey extended into an orchard, ■ where it was not shown that the trees came within the survey, or that the owner would be deprived of their use and enjoyment by the opening of the proposed highway. It seems that an order laying out a new road may be void, so far as relates to a portion of the route, without vitiating the whole order.
    Upon the points in reference to which a distinction between this case and that of Snyder v. Plass, was sought to be'made, it was held,—
    That the fact, that the road passed through improved lands, other than those mentioned as such in the application, does not establish a variance sufficient to render the proceedings void on that account.
    Also, that, notice having been given to the occupants of the land, it was not vitiated because it erroneously stated that some of the improved lands were unimproved.
    This is an appeal by the defendants from a judgment of the Supreme Court in favor of the plaintiff, rendered in the third district.
    The action was brought to restrain the defendants from opening a highway upon the premises of the plaintiff, which was claimed by the defendants to have been legally laid out by the commissioners of highways, and that Plass, who was an overseer of highways of the town, entered upon the premises under the direction of the commissioners for the purpose of opening the road.
    The cause was tried before Mr. Justice Gould, without a jury, at the Ulster Circuit, in May, 1860, and the plaintiff prevailed.
    The justice before whom the cause was tried found the following facts;
    That, on the 14th of November, 1855, John Plass and Abraham A. Dewitt made application in writing to the commissioners of highways of the town of Saugerties, to lay out a highway in said town. In said application the general route of the road, the respective termini, and the parcels of land through which the same would run, were given. The applicants were both residents of the town and liable to be assessed for highway labor therein. The applicants caused the proper notices to be posted of a meeting of the freeholders on the 26th of November, 1855, to examine the ground and certify in respect to the necessity of the proposed road.
    On the 26th of November, 1855, twelve competent freeholders of the town appeared, were duly sworn, examined the route, heard the reasons for and against the road, and signed a certificate that the road was necessary, and the same was placed in the hands of the commissioners of highways.
    The commissioners thereupon gave notice that they would meet on the 27th of June, 1856, to decide upon the application ; and on that day they met and heard the parties interested and determined that the road should be laid out, and made an order to that effect, incorporating a survey of the road; and, on the 14th of August, 1856, filed the same in the office of the town-clerk of Saugerties.
    That a portion of the road so laid out between the points at which it strikes the old road, to the point in said order called “ the center of the road known as the old ehurchland lane, near a hickory tree, in range with an apple tree,” was laid out by the commissioners over and covering the bed of an old road used as a public highway for twenty years, the track being not over seven feet wide, bounded on the west by a side-hill and so situate as to be conveniently widened only on the east side, and that part of the survey and order was for a road only two rods wide.
    That, at the point in this portion of the road, included between the division line of Isaac Snyder and the church-land lane, the easterly line of the survey extended into an orchard of the plaintiff of the growth of seven years and over.
    On the 25th of August, 1856, the plaintiff appealed from the determination of the commissioners, and thereupon referees were appointed by the Ulster County Court to hear the appeal.
    The referees affirmed the acts of the commissioners and the damages to land owners were ascertained in the manner directed by statute.
    The commissioners thereupon directed the removal of fences upon the highway so laid out, as required by the statute; that, in order to carry their determination into effect, the commissioners of highways directed the defendant John Plass, who was a regular overseer of the road district in question, to enter upon the road and dig, excavate and open the same; that, in pursuance of this order, Plass proceeded to discharge his duty, and entered upon a portion of the plaintiff’s premises taken for said road for that purpose, and commenced the work of digging and excavation, but no part of the entering upon, digging or other injuries complained of by the plaintiff were upon that section of the road laid out but two rods wide, or on that section of the survey which bordered upon or extended on the plaintiff’s orchard or dooryard, but such digging was on that portion laid out three rods wide, and did not extend into or adjoin the orchard.
    The justice also found among others the conclusions of law as reported in Snyder v. Plass (28 N. Y. 468.)
    The said justice, upon the foregoing facts, decided as matter of law, that, inasmuch as one part of the proposed road was laid out less than three rods wide, the order was void, and the commissioners, and all acting under them, were trespassers; and ordered an injunction against defendants. The questions made are sufficiently stated in the opinion.
    The defendants duly excepted and appealed to the General Term, where the judgment at the Circuit was affirmed, and the defendants appeal to this court.
    
      John H. Reynolds, for the appellants.
    
      Erastus Cooke, for the respondent.
   Miller, J.

In Snyder v. Plass (28 N. Y. 465), the plaintiff in this action brought an action to recover damages for an alleged unlawful entry of the defendant, who was an overseer of highways, acting under the direction of the commissioners of highways, who are defendants in this case, upon the premises of the plaintiff, in opening and working a portion of the road in question, and it was held that the plaintiff could not recover. The decision of the court was in part upon the ground, that, where a road was ordered by commissioners of highways, to be laid out for part of the distance three rods in width, and for the residue of the distance, which was the bed or track of an old road, used for more than twenty years, two rods in width, the proceedings are not vitiated and rendered void by the provision in the order allowing a road to be opened which is only two rods wide. It was further held, that, regarding the first part of the order laying out the road, up to the point of intersection witlj the old road, as valid, and the residue as a description of the old road to be recorded, and for the purpose of having it opened two rods in width, by a subsequent order to that effect, the whole is consistent, and harmonious, and entirely within the powers of the commissioners. It was also decided that the fact, that dne line of the survey extended into an orchard of over four years’ growth, was not of itself sufficient to make out a case within the language of the prohibition of the statute against the laying out of a highway through an orchard; yet in such case the commissioners would have no right to deprive the owner of the benefit of fruit trees in an orchard, of the growth of four years or over, by an order for the opening of an old road to the width of two rods.

The facts in the case at bar and the one cited are essentially alike, and the only apparent difference seems to be that the one cited was for an entry upon the plaintiff’s premises, while the case under consideration is for an injunction to restrain, the commissioners from making any such entry. In attempting to make a distinction between them, and as a view of the subject, not embraced in the case decided, it is deemed by the counsel for the respondent that there is an impossibility of identifying the line of the road as laid by the commissioners with that applied for, certified to by the freeholders, and described in the notice of the commissioners. It is not entirely apparent that any such difficulty exists from an examination of the case. It does not appear from the findings of the court, upon the trial, and I am unable to discover it elsewhere. The notice describes the road as commencing at the shop of Jeremiah Wolven, and running a north-easterly course to the farm of Andrew De Witt, Jr., thence to the churchland lane, near the house of Isaac Snyder, and as passing through or over the improved lands of Jeremiah Wolven, and the unimproved lands of several persons, including the lands of the plaintiff, and the terminus must be considered, I think, as located according to the survey, at the center of the road, known as the old church-land lane, in conformity with the application, although to reach this terminus the old road is included in the survey. As we have seen, the court have held that the proceedings are not void, because a part of the route is over the old road, and thus have passed upon the question as to the termination of the road, and we are not at liberty to treat it as a new question not presented on the former hearing of the case.

It is said that the terminus is reached in a different direction from that described in the notice and so far at variance with the original application, as to render the proceedings void on that account. This fact is not proved by direct evidence; no map or diagram was introduced to establish any such divergence from the road applied for, nor was any such point presented and considered in the court below or in the case cited.

The road, as surveyed, was, no doubt, located through other improved lands besides those which were mentioned in the original notice, and, it would appear, through the improved land of the plaintiff; but it is by no means manifest, from the ease itself or the findings, that the general route proposed was not followed, or that any new route was pursued essentially different from the one contemplated. On the contrary, the justice who tried the cause has found that the freeholders, after examining the route of the proposed highway, did make and sign a certificate that it was necessary and proper j that the commissioners gave the requisite notice, determined to lay out the highway, and did sign a certificate of such determination, describing the road according to a survey which they had previously caused to be made. With the facts presented it is difficult to see how there can be any real founda- „ tion for the claim made; that the road in its general course differed entirely from the one applied for. The new fact that the road passed through improved lands, other than those mentioned as such in the application of itself, does not establish the material change alleged to have been made, and, at ' most, shows that lands, stated to be unimproved, actually were improved lands.

It is also urged as a feature of the case, to which the attention of the court was not directed upon the argument of the case cited, that the notice of the meeting of the commissioners was necessary to give jurisdiction to lay the road over improved land. The case and the findings of the court show that notice of the application was duly served, and that the commissioners, before determining to lay out the road, caused notice in writing, made and subscribed by each of .them, specifying the time and place where they would meet to decide upon the application, to be served in due form of law upon the respective occupants of the several tracts of land, through which the road was to run. The fact that the notice did not specify that the lands of the plaintiff and others wére improved lands, which appears to be the basis of the objection made, I think was not material and of a vital character. Ho notice is necessary when the lands are unimproved. (1 R. S. 514, §§ 58, 62.) And, notice having been given to the occupants of the land, it was not defective because it erroneously stated that some of the lands improved were unimproved.

It was sufficient, I think, to confer jurisdiction, that the party had notice of, and abundant opportunity to be hear# upon, the application.

It is also insisted, that the establishment of a new road, over that part of the route described as two rods wide, was void for two reasons,—first, because the statute allows no such road to be laid out; and, second, that it was laid out through the plaintiff’s orchard in defiance of the statute. The decision of the court in the case cited, I think, disposes of and covers these objections. Johnson, J., in his opinion, holds that the commissioners had the power in respect to the old road to have a "descriptive survey made of it, to have the description entered of record, and to order it opened to the width of two rods at least; that this was necessarily what they had done, and what they were strictly authorized to do, by statute, unless it be the interference with the orchard. As to the orchard, he holds that the finding of the court, that one line of the survey extended into an orchard, was not enough to establish that it would interfere with the orchard, and that it should have been found that the trees came within the survey, or that the owner would be deprived of the beneficial use and enjoyment of the trees by such survey or opening of the highway. Judge Denio’s opinion, as I understand, is not in conflict with these views, on either of the points suggested. And, as we have seen, both of the learned judges agree, that, even if the order opening the old road was illegal, it did not affect the validity of the order laying out the new road. It would, therefore, appear to be unimportant whether the old road was properly laid out and opened, for it is found by the court in this case, as well as the one cited, that the entry of the defendants complained of and proved upon the trial of this cause, and to restrain the defendants from proceeding with which, this action is brought, was made on that part of the ■ road which is three rods in width, and did not extend into or adjoin the plaintiff’s orchard. The two cases are so entirely similar and identical, that it is not easy to discover a distinction between them which would justify a disregard of the one cited as authority. The questions involved upon this appeal must, therefore, be considered as res-actfudicafa, and if the action to recover damages for the entry of the defendant Plass, under the directions of the commissioners, who are defendants here, cannot be sustained, then it necessarily follows that an action will not lie to restrain the defendants from opening the road in question.

Some other points are pressed upon our consideration, based upon the hypothesis that the questions involved in this case are undecided; but, if the views I have expressed are , sound and maintainable, it is not necessary to discuss them.

The judgment of the General Term, and at the Circuit, should be reversed and a new trial granted, with costs to abide the event.

Mason, J.

This is an action to restrain the above defendants from proceeding to open and work a highway laid out by the defendants, Trumpbour and Poland, commissioners of highways of the town of Saugerties. The suit was sustained and a perpetual injunction awarded, and which judgment was affirmed tin appeal to the General Term, and from which the defendants have appealed to this court. The court below were in error in holding the whole order of the commissioners void, because a portion of the distance the commissioners laid the road only two rods wide. This was expressly decided in the trespass suit brought by the plaintiff against the defendant Plass, for the act of trespass complained of in this suit. (Snyder v. Plass, 28 N. Y. 465.) This court adjudged in that case that the order of the commissioners in this case was valid, so far as the road was laid three rods wide. I do not see that it is important, in this case, to inquire whether the order of the commissioners, so far as it relates to that portion known as the old road, was valid or not, as the judge at Special Term has found the defendants had only entered upon that portion of the road north of the part that runs over the old road, and then only had commenced to dig and excavate. That no part of the digging, entering upon, or other injuries complained of by the plaintiff, were upon that section of the road laid out two rods wide, or that portion, the survey of which bordered upon or extended on to the plaintiff’s orchard or door-yard, but that such digging was on that section which was surveyed three rods wide, and did not extend into or adjoin the orchard. The court, however, holding that one portion of the order, which laid out that portion upon the old road only two rods wide, was void, and that that vitiated the whole order, and rendered the whole void. This was erroneous, as this court have decided in the trespass suit against Plass, involving this very matter above referred to.

The judgment of the Supreme Oourt should be reversed, and the complaint dismissed. It is not a case for a modification of the judgment upon the findings of the court below, where it is found, “ that no part of the digging, entering upon, or other injuries complained of by the plaintiff, were upon that section of the road laid out two rods wide,” there is no ground left for enjoining the defendants from opening and working that portion of the road laid two rods wide, as they have not interfered with or threatened to interfere with that, so far as the evidence in the case shows.

Judgment reversed.  