
    In the Matter of the Application of James R. McFadden, Appelant, for Leave to Discontinue a Highway in the Town of Fort Edward, Washington County, New York, and the Assessment of Damages Therefor. Samuel D. Baker and Others, Respondents.
    Highway— a proceeding to abandon it may he instituted before the highway has been opened. ,
    A proceeding under section 83 of the Highway Law, for the appointment of commissioners to determine whether a highway has become useless and should be Abandoned, may be maintained, although the highway in question has been but lately laid out by the highway commissioners and has not yet been opened, fenced out or worked, nor the damages been paid for the same.
    Any change of conditions rendering a highway useless is as effective as if its uselessness had arisen from age and use.
    Appeal by the petitioner, James R. McFadden, from an order of the County Court of Washington county, entered in the office, of the clerk of the county of Washington on the 29th day of January, 1904, denying the petitioner’s application for the appointment, of commissioners in the above entitled proceeding.
    
      
      Willard Robinson, for the appellant.
    
      John B. Conway and Fred A. Bratt, for the respondents.
   Parker, P. J.:

In March, 1899, upon the application of certain citizens, three commissioners were appointed by the County Court of Washington county to lay out a highway in the town of Fort Edward in that county and to discontinue an old one. On the twenty-first of September of that year they filed a written decision laying out the proposed highway but not discontinuing the old one. Such decision was confirmed by the County Court. An appeal was taken therefrom to this court, where such order was affirmed. (Matter of Baker, 59 App. Div. 625.) From such order of affirmance an appeal was taken to the Court of Appeals, where it was again affirmed. (173 N. Y. 249.) Such order of affirmance was duly-remitted to the County Court, and on October 20, 1903, it became final.

It is claimed by the petitioner herein that the principal object of laying out such new road was. to avoid the steep grade of what is known as “ McFadden Hill; ” that the supervisor of the town, the highway commissioners and" a large number of citizens of the town were of the opinion that the grade of such hill could be cut down at a much less expense than the new road could be laid out, and that a petition of 175 citizens was addressed to the commissioners so appointed to that effect; that such commissioners thought otherwise, however, and ultimately concluded to lay out the new' road. Such road has, of course, been fully defined and laid out by the decision of the commissioners, but it has never, as yet, been opened, fenced out or worked, nor have the damages been paid for the same. Action in opening it has been delayed by the appeals above referred to.

The proceeding now before us arises upon a petition presented by McFadden to the County Court of said county, under section 83 of the Highway Law (Laws of 1.890, chap. 568, as amd. by Laws of 1897, chap. 344), praying for the appointment of three commissioners to determine as to the “uselessness” of the new highway laid out as above stated; it being his purpose and that of the highway commissioners of the town and. of its supervisor to abandon and discontinue such new road, without going to the expense of opening, grading and paying for the same. The County Court refused to appoint such commissioners, and from such order of refusal this appeal is taken.

If the petition in this matter, which is presented under the provisions of section 83 of the Highway Law, has been presented in good faith,, it would seem that it is the plain duty of the County Court to appoint the commissioners as asked for. The provisions of section 84 of the Highway Law seem to be explicit in that respect.

From the opinion of the court below, however, it seems that it refused the application on two grounds; one, that an application to discontinue a road cannot be made until it has been opened and worked; and next, that the application was not made in good faith.

.There is no intrinsic difficulty in discontinuing a road that- has never been opened and worked. Such an one might become' useless, and, if so, clearly liable to be discontinued. Even under the Revised Statutes (1 R. S. 502, § 2; Id. 517, § 81 et seq.), where the roads to be discontinued were designated as “ old roads,” the inquiry really was, had it become useless and very clearly now, under the present provisions of sections 82 and 83 of the Highway Law, that is the. sole and only consideration. Any change of conditions rendering .them “useless” is as effective as if they had become so by age and.use. And this principle is recognized through all the cases cited by the respondents on this appeal. (See People ex rel. Miller v. Griswold, 67 N. Y. 59 ; Matter of Fox Street, 54 App. Div. 479; People ex rel. Clark v. Comr. of Highways of Town of Reading, 1 T. & C. 193.)

.The only .question, therefore, is whether the County Court was justified in refusing, the commission asked for on the ground that the petitioner is not applying in good faith.

.It appears that during the four years while this proceeding was pending before the other commissioners or on appeal, the town board of the town of Fort Edward authorized the highway commissioners to grade down the old highway over McFadden hill. That was done so thoroughly and to such an extent that the grade is now a better one than that provided for in the new road. The rock- formation which the commissioners. anticipated was not found, and the old road, as it. now stands, is a better and more useful one than the new one. The petitioner and the town authorities now claim that for such reason the new road has become useless. In view of the improved old road the new one is not now needed, and, instead of expending several thousand dollars upon it, they now ask for a commission to determine whether it shall not at once be discontinued and this useless expense be saved to the town. If their claim is correct 1 see no reason why the new road may not be discontinued, and I have been unable to discover in this record any reason why an opportunity should not be given to them to establish the truth of their claim.

I am of the opinion that they are in earnest in such claim,, and that it is by no means so clear that they are incorrect as to warrant the court in deciding such question itself rather than giving them a commission to determine it.

The order of the County Court should be reversed, with costs, and the prayer of the petitioner should be granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and the prayer of the petitioner granted, with ten dollars costs.  