
    The People of the State of New York ex rel. Clarence J. Bushnell, Relator, v. Orris Newell and Others, Individually and as Members of the Town Board of the Town of Napoli, County of Cattaraugus, State of New York, Respondents.
    Fourth Department,
    March 3, 1909.
    Highways — power of town commissioners to discontinue highway — certiorari — questions reviewable — party — persons not entitled to writ.
    Under section 80 of the Highway Law, as amended by chapter 387 of the Laws oí 1904, a town commissioner of highways had authority on proper application to determine that a highway was useless and should be discontinued provided the town board made the same determination and gave written consent to the discontinuance.
    As said section makes the order of such commissioner final when the proper consents and releases of damage from owners whose lands are affected have been filed, etc., the Appellate Division on certiorari to review a proceeding discontinuing a highway cannot review the determination that the highway had become useless as a question of fact. The writ brings up the record only for the purpose of enabling the court tt> determine whether the commissioner had authority to make the order.
    
      Releases from damages need be obtained only from those persons who are entitled to damage by reason of the discontinuance and a person not entitled to damages cannot review the proceeding by certiorari.
    Where the line of the south end of the discontinued highway was part of the north line of the highway adjacent to the relator’s premises, but no part of the highway adjoined them, he is not entitled to damages and cannot review the proceeding.
    Certiorari issued out of the Supreme Court and attested on the 17th day of June, 1908, directed to Orris Newell and others, iiidividually and as members of the town hoard of the town of Napoli, commanding them to certify'and return to the office of the clerk of the county of Cattaraugus all and singular their proceedings had in discontinuing a certain highway in said town.
    
      Thomas H. Dowd and Charles E. Congdon, for the relator.
    
      G. W. Cole, for the respondents.
   Robson, J.:

The purpose of this proceeding is to procure vacation and annulment of the proceedings of a former town board of the town of Napoli and the then commissioner of highways of said town in and by which a highway of said town was by order of the commissioner discontinued as useless. These proceedings for discontinuance of the highway and the order made therein were taken and made, as it is claimed by respondents, pursuant to the provisions of section 80 of the Highway Law (Laws of 1890, chap. 568, as last amd. by Laws of 1904, chap. 387), which was in force at. the time said proceedings were begun. This section as amended is, so far as material to our present inquiry, as follows: “ Such commissioners of highways may also, upon written application and with the written consent of the town board, make an order laying out or altering a highway, or discontinuing a highway which has become useless since it was laid out, in their town, upon filing and recording in the town clerk’s office, with such application, consent and order, a release from all damages from the owners of the lands taken or affected thereby, when the consideration for such release, as agreed upon between such commissioners and owners, shall not, in any one case, from any one claimant, exceed one hundred dollars, and from all claimants, five hundred dollars. An order of the commissioners as herein provided shall be final.” The addition of the. words italicised in the above quotation constituted the amendment of the section in 1904 above referred to. Prior to that amendment there does not seem to have been any statutory provision authorizing the discontinuance of a highway as useless by order of the commissioners of highways. Wé are of the opinion that this amendment clothes the commissioners of highways of a town with authority to determine on due application the question whether or not a highway is useless, provided the town board shall have also so determined, and evidenced such determination by its written consent to the discontinuance of such highway.

The. record shows that an application was made to the commissioner of highways to discontinue the highway in question; that the town board gave its written consent to such discontinuance; that releases of damages, were procured ; that the commissioner made an order discontinuing the highway, and filed the application, consent, releases and order in the town clerk’s office, and that the same were thereafter recorded therein. It also appears that the uselessness of said highway was considered and determined both by the town board before giving its written consent and by the commissioner before making the order. It is doubtless true, as relator’s counsel suggests, that a proceeding to discontinue a highway under the amended section above quoted, “ involves-the determination of a question of fact, to wit, whether the highway has become useless.” We are, however, precluded from reviewing in this proceeding such determination of fact. The order of the commissioner discontinuing a highway, as provided by the act, being also thereby declared to be final, the writ of certiorari brings up the record of the proceedings resulting in the order only for the purpose of enabling this court to determine by examination whether the commissioner acted within his authority in making the order. (People ex rel. Schuylerville & U. H. R. R. Co. v. Betts, 55 N. Y. 600; People ex rel. Seymour v. Canal Board, 7 Lans. 220, 222; People ex rel. Foote v. Dewey, 1 Hun, 529.)

Belator insists that the commissioner was not within the limits of his authority in making the order for the reason that, as is claimed, he failed to procure and file with the order releases of all damages from all the; owners of the lands affected by the order since, as he claims, he is himself the owner of lands affected by the discontinuance of the highway and has given no release, and that there are other owners similarly situated, from no one of whom has such release been obtained. Within the meaning of thé statute thosf lands only are affected by the discontinuance of a highway whose owners are entitled to damages for such discontinuance; for it is only from* such owners that releases of damages are required by the statute. It appears that releases of damages from all persons owning lands through or adjacent to which the discontinued highway extended were procured and duly tiled. Such owners are the only persons who are entitled to an award of damages for discontinuance of a highway as appears from the decisions in kindred cases in which the question of a right to damages for laying out a highway' was passed upon. (People ex rel. Scrafford v. Stedman, 57 Hun, 280, 284; People ex rel. Lawrence v. Schell, 5 Lans. 353; People ex rel. Cronk v. Weld, 6 N. Y. St. Repr. 173.) The line of the south end of the discontinued highway is a part of the north fine of a highway adjacent to relator’s premises, but ho part of the discontinued highway adjoins them. He is, therefore, not the owner of lands so affected by the discontinuance of the highway as to entitle him to damages for discontinuing it. For this reason he is not entitled to maintain this proceeding to review the action of the town authorities in discontinuing the. highway. (People ex rel. Lawrence v. Schell, supra.)

. The inconvenience he suffers by reason of the discontinuance comes to him in common with the general public whose business or pleasure might lead them to continue to use the highway if it had not been discontinued.' His special injury not common to the general public is that he, perhaps, might have more frequent occasion for its use than persons living at a greater distance from it.

The order of the highway commissioner discontinuing the highway should be confirmed and the writ dismissed, with fifty dollars costs.

All concurred.

Order of highway commissioners confirmed and writ of certiorari dismissed, with fifty dollars costs and disbursements.  