
    COURT OF APPEALS.
    Satterly agt. Winne.
    
      Highways — Private road — Sescription in order laying out — What is substantially a compliance with the statute — When order defective — Siscretion of Commissioners.
    
    The statute governing the laying of a private road is substantially complied with where in the application the general course is given as easterly or-westerly, &c., and the exact course and distance can be determined from other particulars in the application, or by natural monuments referred to-therein; the statute does not require that the courses shall he specified in the application by degrees and minutes.
    The order laying out such road is fatally defective when it does not follow the description in the application, but differs essentially from it, unless the description in the application is deemed to be incorporated into the order.
    Commissioners of highways in laying out a private road have no discretion as to where they will lay it, but must lay it out as described in the application.
    
      Decided January, 1886.
    
      John M Van Etter for appellant, Robert Winne.
    
      William Lounsbery, for respondent, Andrew Satterly.
   Andrews, J.

Tbe question in this case turns upon tbe validity of tbe proceedings taken in 1877 to lay out a private road over tbe lands of tbe plaintiff and Samuel L. Satterly. If tbe road was legally laid out where tbe jury in fact intended to lay it out, and where it was staked out by tbe commissioners, tbe locus in quo of tbe alleged trespass was within tbe boundaries of tbe road’, and tbe action cannot be maintained. Tbe act of 1858 (chap. 174, sec. 1) prescribes that an application for a private road shall be made in writing, “specifying its width and location, courses and distances, and tbe names of the owners and occupants of tbe land through which tbe road is proposed to be laid out.” Tbe application in tbis case was in writing, for tbe laying out of a private road, of tbe width of one and a half rods, beginning at a pair of bars at tbe westerly terminus of a road known as tbe “ ‘Winne road,’ on tbe easterly side of the old Kingston and Delaware turnpike road, and which now leads from tbe corner, in tbe town of Shandaken,” &c., “and which said Winne road leads from said road to a place called ‘ Dunderbark;’ and running from thence (said bars) in an easterly course along tbe bed of said Winne road to the foot of a short hill near a small apple tree, about 120 yards; thence leaving tbe old bed of said Winne road and continuing in an easterly course along the north side of tbe said bill about 200 yards, and there again striking the bed of said "Winne road, near a thicket of hemlock and laurels, on the north side of the road; thence in a northerly course along the "bed of said Winne road to the lands of Samuel L. Satterly about eighty rods; thence continuing in a northerly course along the bed of said Winne road, over the lands of said Samuel L. Satterly, to the lands of William Satterly, about eighty rods, and which said proposed road is wholly in the said town of Woodstock (Ulster county), and runs through the lands of Andrew Satterly and Samuel L. Satterly.”

It will be noticed that the application describes the proposed road as being in the town of Woodstock, county of Ulster, and the width, courses, distances, and the termini; and further describes it as following the bed of the old Winne road, except for the distance of about 200 yards on the second course. The Winne road was a way across the lands of the plaintiff and his brother, Samuel L. Satterly, which had been used for sixteen or eighteen years by the defendant and others. It was plainly marked on the ground by such user, but had never been legally laid out; and its use by the defendant had been by the license of the owners of the land only. The descriptions in the application of the termini of the proposed road are indefinite, except as they are made definite by the reference to the Winne road. The point of commencement is the bars,” and the point of termination the “lands of William Satterly.” But where the “ bars ” were located, and at what precise point upon the lands of William Satterly the road was to terminate, is made definite by the reference to the Winne road, provided that road itself is such a definite monument as may be referred to to make certain the indefiniteness of the description in other respects. The center line of the old road-bed must be intended to be the line described in the application (People agt. Commissioners, 13 Wend., 310). The location of this center line will determine the exact termini of the proposed road.

It was held in People agt. Commissioners, &c. (37 N. Y., 360), that a description of a proposed highway by reference to an established highway was a sufficient description by metes and bounds,” under the general highway act. It is true that the description of public highways is usually matter of public record, although this is not always the case; and what the fact was in this respect, in the case cited, does nbt appear. A private way by permission, not a matter of record, is a less certain monument than a recorded highway. But where such a way has been used for a great number of years, so that it has come to be called a road, there is little chance of uncertainty, and a description in an application by reference to such road gives substantial certainty to the description. The statute must, doubtless, be substantially complied with; but exact and technical accuracy in proceedings for the laying out of a private road, conducted, as they usually are, by persons not lawyers, cannot be expected. New private roads would bear the test of a scrutiny which required a verbal and literal conformity to the words of the statute. We think the application did specify with sufficient distinctness the termini of the proposed road.

The course and distance of each line are stated in the application. The courses are not given by the compass, and the distances are approximate; but these are also made certain by reference to the Winne road, except where, on the second course, the proposed road leaves the Winne road for the distance of about 200 yards. But natural monuments — the apple tree, the hill, and the thickets of hemlock and laurel — mark the divergence and the point where the old road-bed again be-' comes the line of the new road. The statute does not require that the courses shall be specified by the compass in degrees and minutes; and, where the general course is given in the application as easterly or westerly, &c., and where .the exact course and distance can be determined from other particulars in the application, or by natural monuments referred to therein, the statute is substantially complied with. We are of opinion, therefore, that the application conformed to the statute, and gave jurisdiction to the commissioners to call a jury, and authorized the jury to act upon the application. It is undisputed that the jury, before making their determination, proceeded, in presence of the commissioners, to view the' premises; that the proposed road was staked out; and that the damages were assessed for the land within the boundaries so designated on the ground.

The most serious objection in the case arises upon the order of the commissioners laying out and describing the road after the jury had found that it was necessary and had assessed the damages. The order in describing the road does not follow the description in the application. It describes the road as beginning at the bars, &c., “ and then running an easterly course of 988 feet, and then a north-east course 160 feet, and thence bearing a little more east 809 feet; thence bearing more north 252 feet,” and so on. It is indefinite, and except that it refers to the application and declares that the commissioners had ordered that the road be laid out pursuant to the application, according to a survey made by them, would be incurably defective. The first course given in the order, running 988 feet, embraces the first two courses in the application. The distance by measurement of the first two lines,'as given in the application, is about 1,000 feet.

The inference from the description in the order, unaided by the application, would be that the first course of 988 feet was a straight line, whereas in fact there is a bend in the road, as described in the application, before reaching the termination of the second course, and a straight line from the bars to the termination of the second course would leave the locus in quo outside the road. But if the description in the application is deemed to be incorporated into the order, the two descriptions can be substantially reconciled. It would then appear that the distance of 988 feet was not a straight line, and so as to the other discrepancies and uncertainties in the lines specified in the order. We are of opinion that the description in the application is the controlling one, and determines the actual locus of the way. In laying out a private road, if the jury find in favor of laying out the road, the commissioners are bound to lay it out as described in the application, and have no discretion either to refuse to lay out the road or to change its location, or to depart in any respect from the road proposed by the applicants. They have no power to decide anything, but perform simply the ministerial functions prescribed in the twelfth section of the act of 1853. That section is as follows:

“ The commissioners shall annex to such verdict [of the jury] the application mentioned in the first section of this act, and hand the same to the town clerk, who shall file the same; and the commissioner or commissioners shall lay out and make a record of said road, as described in the petition of the applicant.”

It is true that the road certified by the jury does not become .a legal private road until the commissioners have performed the ■duty imposed by this section. That the verdict and application were duly filed is not questioned. The order declares that it was laid out pursuant to the application. The description in the order does not follow the language in the application. But this we conceive cannot be essential, provided the description in the application is incorporated into the order by reference, and the two descriptions are not irreconcilably repugnant

"While, on the one hand, we recognize the importance of the rule that proceedings in invitum to divest an owner of his property ought to be carefully watched so that no injustice be done, on the other hand, we cannot fail to recognize the importance of the public policy, sanctioned by constitutional provision, which requires that facilities be furnished for private ways, so that the property of citizens may be made accessible. This policy will be best promoted by a fair and reasonable, instead of a strained, construction of the statute authorizing the laying out of a private road; and we aré of opinion that there was no defect which invalidated the proceedings in this case.

The point that the road ran across the land of one Evans, who was not named in the application or notified, and whose damages were not assessed, is not supported by the evidence taken in this proceeding, and the point was not raised on the trial. If tbe question was before us it would, we tbink,-admit of -great doubt wbetber tbe plaintiff could allege a defect or omission in tbe proceedings affecting tbe right of a third person with whom be was not in privity, and who raises no question, and, so far as appears, makes no complaint

We tbink tbe complaint was properly dismissed at tbe circuit, and that tbe order of tbe general term should be reversed and judgment entered for tbe defendant.  