
    Abram Schermerhorn, Com'r of Highways, App'lt, v. The Mount McGregor Railroad Co. et al., Resp'ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Railroads—Highway crossings—Change of location.
    A railroad company in crossing a highway may make a change in its location, if necessary, so long as it does not unnecessary interfere with the usefulness of the highway.
    2. Same—Presumption as to permission of the court.
    In the absence of any admission or evidence, it will not be presumed that a railroad company used or crossed the highway in question without permission of the supreme court.
    3 Same—Restoration.
    In making a crossing of the highway in question the railroad, in 1881, altered the highway by building a new road in a straight line between two points on the old road, thereby shortening it, and crossed said new road four rods from the old one. The new road was on land of the commissioner of highways, who assisted in the work. Since then the new road has been constantly used and the old one been abandoned. Held, that the old highway not having been used or worked for over six years had ceased to be such, and that after such long acquiescence by the authorities, the court would not make any' change in its location or construction.
    Appeal from judgment dismissing the complaint on the merits.
    Action to compel the restoration of a highway to its former state, or to such a state as not to unnecessarily impair its usefulness.
    In 1881 the defendant railroad, in making a crossing of the highway in question, constructed a new road in a straight line between points on the old highway, thereby shortening said highway, and crossed the same about four rods from the point where it would have crossed the old one, and further up the mountain.
    The following is the opinion of the court below:
    Stover, J.—The complaint in this action alleges that the defendant constructed its road over a highway in the town of Wilton “ in such a manner, and left said highway in such a condition as to render travel thereon over said railroad dangerous and inconvenient, and the said corporation did not restore said highway in such locality to its former state, or to such state as to not unnecessarily impair its usefulness as a public highway, and the same has never been restored, and the said crossing of said railroad over such highway was left by said company, ever since has been, and now is, in a condition dangerous to public travel, inconvenient, and almost impassable.”
    It will be seen that this allegation, and this is the only allegation in that regard, does not point out the particulars in which the usefulness of the road is impaired, but is a general allegation, and evidently refers to the point where the railroad crosses the old portion of the highway. The complaint seems to be framed upon the theory that the railroad company was bound to restore the old highway, and to make a highway crossing at the point where the railroad crossed the old highway.
    
      On the trial, it was stated by the counsel for the plaintiff that his contention was that the railroad company had no right to change the location of the highway, but should have left the highway crossing at the same point it was prior to the building of the railroad, and have constructed its road -so as to pass over the highway at that point. It appears that the route of the new portion of the highway is somewhat shorter than the old portion, which had been abandoned and not used since the construction of the railroad. The railroad was constructed in 1881; at that time Cyrus Washburn was commissioner of highways, and owned the land upon which the new portion of the highway was built. The road was built under his direction, the railroad company furnishing the laborers to do the work, and, it must be presumed, to the satisfaction of Washburn. The new portion of the highway has been used since 1881, and it is conceded that the old portion has not been used during that period. The grade of the new portion is somewhat steeper than was that upon the old. It does not appear that it is practicable to maintain a crossing at the point where the railroad crossed the old portion of the highway.
    I thinlc the plaintiff has failed to make out his cause of action. The railroad company had the right to change the location of the highway, so long as it did not unnecessarily interfere with the usefulness of the highway. The railroad company has to judge, in the first instance, as to the manner in which the crossing of the road shall be made, and may change the location of the highway, if necessary, and the court is called upon to interfere only when the railroad company unnecessarily impairs the usefulness of the highway. The statute evidently contemplates that the usefulness •of the highway maybe somewhat impaired, but must not be unnecessarily impaired. The railroad company had the right to condemn sufficient property to change the location of the highway, but in this instance it was unnecessary. It might have obtained a deed from Washburn, or as it did with Washburn’s consent and permission, enter upon his land and build the road, thus making a highway by dedication and use, and so long as that act did not unnecessarily impair the usefulness of the highway, no one could complain. I think it is ■ quite clear that the new portion of the highway was dedicated for that purpose by Washburn, and that the public has accepted and used it sufficiently so as to constitute. it a highway. Again, if the court is to interfere in a case of this kind, the evidence should be clear as to the particulars in which the highway was unnecessarily impaired. I think it should be so specific that the court might direct the particulars in which the railroad company should proceed to restore the road. It would be idle for the court to mak,e a general direction that the railroad company should restore the highway to its former state of usefulness, unless it plainly pointed out the particulars in which the railroad company shall perform the direction of the court. I could not, it seems to me, under the evidence in this case, make such a direction. The court cannot, from the evidence, obtain a clear and well defined idea of the particulars in which the road should be improved, so that it could direct what should be done. The highway has been used for a long time, and, until within the past year or two, the evidence shows that there was no objection raised by anybody, and none prior to the time that the road went into the hands of the receiver.
    While perhaps the statute of limitations would not run in a case of this kind, yet the acquiescence for so long a period raises some presumption in favor of the defendant, and, in the absence of clear and direct evidence, this ought to prevail against those who have slept upon their rights, if they have any.
    The defendant is entitled to judgment dismissing the complaint, with costs.
    
      French & Smith (W. B. French, of counsel), for app’lt; C. H. Stuiges, for resp’t.
   Herrick, J.

There is nothing in the pleadings or in the evidence to show whether the railroad company did or did not procure the permission of the supreme court to use or cross the highway in question, and in the absence of any admission or evidence of the fact that such permission was not granted, the court will Hot infer that the railroad company proceeded in violation of the law, but, rather, that the law has been complied with.

The old highway not having been used or worked for more than six years, has ceased to be a highway”. Horey v. Village of Haverstraw, 124 N. Y., 273; 35 St. Rep., 360.

And the court cannot, in these proceedings, reopen it as a highway. The new road, laid out in place of the old, has been used and worked for so long, and its location acquiesced in for so many years by the town and highway authorities, that I do not see that the court should be called upon at this late day to make any change in its location or construction.

The opinion of the trial court seems to me entirely satisfactory^ and its disposition of the case correct.

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.  