
    In the Matter of the Application of Ernest L. Field to Lay Out and Open a. Highway in the Town of Easthampton, Suffolk County, N. Y., and the Assessment of Damages Therefor.
    Motion to confirm order of County Court denied, with costs.—Application for an order confirming an order of the Suffolk County Court, which order confirmed the report Of certain commissioners.
   Woodward, J.s

This is a proceeding under the Highway Law (Laws of 1890, chap. 568) for the opening of a highway, and because it as proposed to run the road through the house and garden of the landowner, without his consent, the commissioners of highways are required to present the case to this court and procure the confirmation of the order of the County Court before the highway can be laid out. (Highway Law, § 90.) There is no question raised as to the regularity of the proceedings in all things, but che landowner, who is awarded §500 damages, urges that this court should not confirm the order of the County Court. In the town of Easfchamptom, Suffolk county, is a pond known as Geórgica pond. This body of water covers an area of from 400 to 600 acres, and lies so close to the Atlantic ocean that the sand barriers between them are broken down at intervals, when the tide ebbs and flows in the pond in harmony with the flow of the tide» in the neighboring ocean. It is fed by springs and streams, but all of the evidence indicates that it is merely a lagoon, and constitutes a part of the territory given over to the domir nonce of the ocean, though the town of Easthampton claims title to the pond, and there is a suggestion in the evidence that the premises of riparian owners extend to the middle of the pond, but we are unable to discover any good title to the land under the water in so far as the adjacent owners are concerned. It is certain that for many years this pond has been a common fishing, eeling and crabbing ground for the people, of Easthampton, and that it has been largely used as a pleasure resort and for the sailing of light-drought craft. In recent years there appears to have been an influx of summer residents, and ill-advised pretensions to dominion over the pond on the part of individuals have excited the apprehensions of others, Who have succeeded in diffusing a sentiment throughout the community of Wainscott, a hamlet of about 100 inhabitants, which demands a highway to this pond, its surroundings being entirely owned by private individuals. This proposed highway is an extension of Main street in the village of Wainscott, and is almost wholly confined to the premises of one William H. S. Wood, who purchased the premises some twenty years ago, occupying a portion of the proposed highway, at one time a private roadway, with a house and garden, which brings the matter within the jurisdiction of this court. From the evidence before the commissioners it appears that the summer residents, who have purchased property bordering upon this pond, are nearly equal in numbers to those of the1 adjacent village, ahd these are very generally opposed to the proposed highway, as there is a well-grounded suspicion that there is back of the matter a determination on the part of the Wainscott people to continue the highway at another time across the pond, which would somewhat shorten the distance to one of the neighboring hamlets, and in this manner practically ruin the pond for boating purposes. This view of the matter is strengthened by the conduct of the promoters of this proposed highway, who were offered a free right of way to the open waters of the pond by Mr. Wood if they would consent to abandon this particular route, which cuts his property into two parcels, and seriously interferes with its value as a summer residence site. This court is committed to the proposition that the people of this locality have a right to have the highways extended to this pond (Matter of Laying Out a Highway, 21 App. Div. 623), but they have no natural right to wantonly destroy property values, when the practical result can be reached without doing material injury to anyone; and while it is urged that the highway, ending at Goose creek, would not make •an available- landing place at all times, there is no evidence that the right of way offered by Mr. Wood would not accomplish all that is urged in the support of the contention of necessity, upon which the entire proceeding rests. No one claims that a highway is necessary here to enable the community to Teach the markets or the railroads; the entire claim of necessity is that the people -should have a means of reaching this pond without being obliged to trespass upon private property, and they have no right, upon such necessity to impose any burdens upon others winch are lot required to meet this demand. The community’s right to take private property for puoiic purposes is limited by the reasonaole necessities of the community; it has no moral right to wrong the owner of property all out of proportion to the result to be accomphsned, and we are persuaded, from an examination of the whole question, that every ngnt of the peopie of Wainscott may be "preserved at a much less expense to themselves, and with .greater satisfaction, to the community as a whole, without working this injury to an in-dividual landowner, who has evidenced a disposition to afford all hat is demanded, a Tight of way to this pond, which should be accessible to all. The question of a few rods increase in distance has never been known to deter the fisherman of to dampen the ardor of an celer, nor to set unreasonable hounds to the enthusiasm of a searcher after crabs; and as the waters of the pond are nob ■available.for producing ice, watering cattle or domestic purposes, the question of public convenience is reduced entirely to these oc-cupations, with a little incidental sailing. There appears to be no objection to the highway as far as Goose creek; it might be extended along that arm of the pond to a point where deep water would be assured at all times, but to arbitrarily carry it entirely across the premises of Mr. Wood, to serve no higher utility than that suggested in the proceeding now before us, is to make use of the law to do an injustice all out of proportion to the necessities of the case. The statute has imposed upon- this court the duty of determining for itself whether the facts justify the sacrifice proposed, and we shall best discharge that duty by refusing to confirm the order of the County Court. The motion to confirm the order of the County Court- should be denied. All concurred.  