
    In the Matter of the Application of Alice E. Fenn, Respondent, for the Appointment of Commissioners to Alter or Change a Highway in the Town of Putnam, and the Assessment of Damages Therefor. George Smith and Others, Appellants.
    Third Department,
    June 27, 1912.
    Highway — proceeding to correct error in order for proposed highway — “ orchard ” within meaning of Highway Law — evidence —when decision of commissioners will not he reversed.
    Where through some error a highway has been laid out so as to pass through two houses, a proceeding to correct the error may be properly entitled “ A Proceeding to Alter an Existing Highway.”
    Fruit trees planted with the evident purpose of raising difficulties to the laying out of a highway do not constitute an “orchard ” within the meaning of the Highway Law.
    In a proceeding for the alteration of a highway, evidence as to the value of the land with the highway as originally laid out and as to its value with the proposed altered highway is incompetent where the original highway has not been laid out; but its admission is harmless where it did not eni er into the decision of the commissioners, and where the witness swore on cross-examination that independently of the original highway, the proposed highway would not diminish the value of the property.
    ■ Where commissioners in laying out a highway have assessed damages assuming that there was an existing right of way over the lands crossed by the proposed highway, the court on appeal from an order confirming the report of the commissioners will not reverse them decision because there is nothing in the record to indicate an existing right of way over the lands of one of the owners, where the attorney for such owner fails to claim that no right of way in fact existed.
    Appeal by George Smith and others, landowners, taxpayers and persons interested, from an order of the County Court of Washington county, entered in the office of the clerk of said county on the 4th day of January, 1912, confirming the decision of commissioners herein and denying the appellants’ motion to vacate said decision.
    
      Jenkins & Barker [J. H. Barker of counsel], for the appellants.
    
      Bratt & Van Wormer [Fred A. Bratt of counsel], for the respondent.
   Per Curiam:

First. Appellants object that this proceeding to alter or change a highway cannot be taken because of the fact that there was no existing highway to alter or change. Under former proceedings a highway had been ordered laid out substantially upon the line upon which the highway in question is laid out. By reason of evident error that highway passed through two houses. Before laying out the last highway, pursuant to the permission granted, this proceeding was taken to correct that evident error. The proceeding is precisely the same in all its details as a proceeding to lay out a highway originally. We see no objection to the proceeding because it is named A Proceeding to Alter an Existing Highwny.”

Second. Some fruit trees have been planted in the line of this highway with the evident purpose of raising difficulties to the laying out of the highway. This was so found by the commissioners, and it was found that these fruit trees did not constitute an orchard within the meaning of the Highway Law. (See Consol. Laws, chap. 25 [Laws of 1909, chap. 30], § 200, as amd. by Laws of 1911, chap. 624.) With this conclusion we are in full accord..

Third. Evidence was allowed, over the appellants’ objection, ' as to the value of the land with the highway as originally laid out and as to its value with the proposed altered highway. The answer to these questions indicated that the value of the land would he enhanced by the alteration. This evidence was probably incompetent, inasmuch as the former highway had not been laid out, and the commissioners directing that it he laid out not contemplating that the highway passed through the houses in question. The admission of the evidence was harmless, however, as it apparently has not entered into the decision of the commissioners. The witness on cross-examination swore that independently of the proposed highway before laid out, a highway in the location named, in view of the right of way already existing, would not diminish the value of the property. Moreover, the commissioners viewed' the property and might rely to an extent at least upon that view in assessing the damage.

Fourth. The commissioners state in their decision that they have assessed damages in view of the fact that there already existed a right of way over these premises. There appears in the case evidence of an existing right of way over all the premises except that of Cameron Beck. There is nothing in the record which would indicate an existing right of way over the premises of Cameron Beck except the attempted amendment by the commissioners of highways in laying out the highway authorized under the first commissioner’s report. In that attempted alteration the commissioner refers to a two-rod right of way now existing along the line of the proposed highway. The fact seems to have been assumed upon the trial before the commissioner, and appellants’ attorney does not now state that no such right of way exists. If it be a matter of record it could be produced before this court in support of the determination below. In view, however, of the evident assumption of the existence of the fact during this whole proceeding, we are not inclined to reverse this judgment without any claim of the counsel for Cameron Beck that no such right of way in fact existed. That such a right of way was assumed to exist, however, finds corroboration in the proof of the right of way across all of the other premises affected by the highway in question, and the further evidence of an actual traveled route across the Beck property in connection with the use of the right of way upon the adjoining property. The order, therefore, should be affirmed, with costs.

All concurred.

Order affirmed, with costs.  