such notice to such parties interested as he shall direct, apply to the county court of the county where such highway shall be, for the appointment of three commissioners to determine upon the necessity of such highway proposed to be laid out or altered, or to the uselessness of the highway proposed to be discontinued and to assess the damages by reason of the laying out, opening, altering or discontinuing of such highway. Such application to the county court shall be accompanied by the written undertaking of the applicant executed by one or more sureties, approved by the county judge, to the effect that if the commissioners appointed determine that the proposed highway or alteration is not necessary or that the highway proposed to be discontinued is not useless, the sureties will pay to the commissioners their compensation at the rate of six dollars for each day necessarily spent and all costs and expenses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of fifty dollars. Id., § 83, as am'd L. 1894, c. 334.

[Note.- Revised from L. 1875, c. 431; L. 1877, c. 465, and L. 1881, c. 696, § 1; 1 R. S. *p. 514, 60; p. 515, § 65, and p. 517, § 81. (See Birdseye's R. S., 1st ed., pp. 1346, 1347, 1348, 1355.) This is an entire change in the old law. Formerly the proceedings were before a jury drawn by the town clerk in presence of a justice of the peace, or one of the commissioners of highways. The provision of the last sentence as to an undertaking on the application was added in 1893.]

7 Misc. 214: 4 T. & C. 438: 17 W. D. 456; 18 id. 232; 36 Hun, 181; 38 id. 43; 41 id. 384; 43 id. 69; 45 id. 310; 69 id. 118; 58 id. 555; 56 id. 64; 32 N. Y. St. R. 651, 712; 46 id. 791; 53 id. 156; 7 Barb. 304; 8 id. 157; 19 Wend. 103; 1 T. & C. 193; 67 N. Y. 59; 8 N. Y. Supp. 621; 92 Hun, 13, 14; 90 id. 499.

84 Appointment of commissioners and their duties. Upon the presentation of such petition, the county court shall appoint three disinterested freeholders, who shall not be named by any person interested in the proceedings, who shall be residents of the county, but not of the town wherein the highway is located, as commissioners to determine the questions mentioned in the last section. They shall take the constitutional oath of office,* and appoint a time and place at which they shall all meet to hear the commissioners of highways of the town where such highway is situated, and others interested therein. They shall personally examine the highway described in the application, hear any reasons that may be offered for or against the laying out, altering or discontinuing of the highway, and assess all damages by reason thereof. They may adjourn the proceedings before them from time to time, issue subpoenas and administer oaths in such proceedings, and they shall keep minutes of their proceedings, and shall reduce to writing all oral evidence given before them upon the subject of the assessment of damages. They shall make duplicate certificates of their decision, and shall file one in the town clerk's office of the town, and the other, with such minutes and evidence, in the county clerk's office of the county in which the highway or proposed highway is located. Id., § 84.

[Note.- Revised from 1 R. S. *p. 514, § 60, and L. 1881, c. 696, § 1. (See Birdseye's R. S., 1st ed., pp. 1347, 1348.) See also 1 R. S. p. 515, §§ 66-69. The procedure in this section is also new.]

7 Wend. 531; 16 id. 520; 4 Barb. 76; 46 id. 317; 42 id. 263; 60 N. Y. 649; 5 T. & C. 207; 46 N. Y. St. R. 220; 53 id. 156; 58 id. 555; 69 Hun, 118; 7 Misc. 214; 90 Hun, 499.

85 Notice of meeting. The applicant shall cause, at least eight days previous, written or printed notice to be posted up in not less than three public places in the town specifying, as near as may be, the highway proposed to be laid out, altered or discontinued, the tracts or parcels of land through which it runs, and the time and place of the meeting of the commissioners appointed by the county court to examine the highway as mentioned in the last section. Such notice shall also, in like time, be personally served on the owner and occupant of the land, if they reside in the town, or by leaving the same at their residence with a person of mature age; if they do not reside in the same town, or service can not be made, a copy of such notice shall be mailed to such owner and occupant, if their post office

*See Constitution, § 142.

address is known to the applicant or ascertainable by him upon reasonable inquiry. L. 1890, c. 568, § 85.

[Note.- Revised from L. 1873, c. 69, § 1; L. 1878, c. 114, and 1 R. S. *p. 514, §§ 59, 62. (See Birdseye's R. S., 1st ed., pp. 1346, 1347, 1362.) See note to § 83.]

5 Lans. 318; 32 N. Y. St. R. 659; 46 id. 220; 47 id. 615; 5 T. & C. 207; 7 Misc. 214; 10 N. Y. Supp. 788, 789; 20 Wend. 187; 17 How. Pr. 75; 46 Barb. 209, 317: 42 id. 263; 50 id. 93; 38 N. Y. 360; 24 id. 345, 351; 54 id. 61; 60 id. 649; 7 Hun, 17 57 id. 280.

86 Decision of commissioners in favor of application. If a majority of the commissioners appointed by the county court shall determine that the highway or alteration applied for is necessary, or that the highway proposed to be discontinued is useless, they shall assess all damages which may be required to be assessed by reason thereof and make duplicate certificates to that effect. Id., § 86. [Note.- Revised from L. 1880, c. 114, § 2: 1 R. S. *p. 514, § 63.

ed., p. 1347.) This procedure is new.]

(See Birdseye's R. S., 1st

46 N. Y. St. R. 220, 790; 7 Misc. 214; 15 Barb. 480; 46 id. 317; 42 id. 263; 4 id. 76; 23 Wend. 326, 328; 12 id. 98; 3 Hun, 298, 300; 56 id. 64; 74 id. 259; 37 N. Y. 364; 24 N. Y. 345, 351; 60 id. 649; 28 id. 116; 56 id. 383; 5 T. & C. 532, 207. 87 Damages in certain cases, how estimated.

The owner of lands within the bounds of a highway discontinued may inclose the same and have the exclusive use thereof, and the benefits resulting therefrom may be deducted in the assessment of damage caused by the laying out of a highway through his other lands in place of the discontinued highway. Id., § 87.

[Note.- Revised from L. 1847, c. 455, § 22; L. 1880, c. 114, § 3; 1 R. S. *p. 515, § 64, and p. 516, 71. (See Birdseye's R. S., 1st ed., pp. 1347, 1351, 1359.) Without material change.]

5 T. & Č. 207; 46 N. Y. St. R. 220; 30 id. 29; 19 Wend. 102; 7 Barb. 297; 46 id. 317; 42 id. 263; 6 Hun, 553; 63 id. 64; 91 N. Y. 561; 24 id. 351; 60 id. 649; 120 id. 332; 5 Lans. 323; 26 How. Pr. 380; 7 Misc. 214.

88 Decision of commissioners denying application. If a majority of the commissioners appointed by county court shall determine that the proposed highway or alteration is not necessary, or that the highway proposed to be discontinued is not useless, they shall make duplicate certificates to that effect. The costs and expenses necessarily incurred by such commissioners in the proceedings shall be indorsed upon such duplicate certificates, and upon a confirmation of such decision and of the amount of such costs and expenses by the county court, such costs and expenses not exceeding fifty dollars shall be payable by the applicants. Id., § 88, as am'd L. 1894, c. 334.

[Note.- Revised from 1 R. S. *p. 518. § 82. (See Birdseye's R. S., 1st ed., p. 1355.) See note to § 83. The last sentence was added in 1894.]

7 Misc. 214; 8 Barb. 157; 67 N. Y. 60.

89 Motion to confirm, vacate or modify. Within thirty days after the decision of the commissioners shall have been filed in the town clerk's office any party interested in the proceeding may apply to the court if in session or to the county judge appointing the commissioners for an order confirming, vacating or modifying their decision, and such court or judge may confirm, vacate or modify such decision. If the decision be vacated the court or judge may order another hearing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final. Such motion shall be brought on, upon the service of papers upon adverse parties in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the county court or judge shall be final, excepting that a new hearing may be ordered as herein provided. If the final decision shall be adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years. Id., § 89, as am'd L. 1895, c. 716.

[Note.- Revised from L. 1845, c. 180, $$ 6-9, 12; L. 1847, c. 455, § 3, and 1 R. S. *p. 518, §§ 84, 85-90. (See Birdseye's R. S., 1st ed., pp. 1349, 1356, 1357.) See note to § 83.]

7 Misc. 214; 11 id. 690; 8 N. Y. 479; 67 id. 61; 63 id. 391; 78 id. 21; 65 id. 452; 51 id. 474; 54 id. 132, 140; 65 id. 452; 78 id. 25; 25 Wend. 453; 24 id. 492; 7 id. 266; 20 id. 187; 13 id. 435; 4 Paige, 522; 15 Johns. 537; 20 How. Pr. 305; 14 id. 528; 6 id. 175; 26 id. 348; 27 id.

196; 7 id. 29; 41 id. 124; 46 id. 209; 19 id. 240; 42 id. 263; 6 id. 612; 27 id. 238; 50 id. 93; 18 Abb. Pr. 67; 4 Cow. 190; 2 Cai. 179; 8 Hun, 357; 27 id. 218; 32 id. 300; 77 id. 478; [88 id.; 30 N. Y. St. R. 709, 710; 32 id. 732; 60 id. 670; 9 N. Y. Supp. 618, 619; 10 id. 788; 68 N. Y. St. R. 279; 92 Hun, 14, 189; 90 id. 180; 4 App. Div. 542.

90 Limitations upon laying out highways. No highways shall be laid out less than three rods in width, nor through an orchard of the growth of four years or more, or any garden cultivated as such for four years or more, or grape vineyard of one or more years growth, and used in good faith for vineyard purposes, or buildings, or any fixtures or erections for the purposes of trade or manufactures, or any yard or inclosure necessary to the use and enjoyment thereof, without the consent of the owner or owners thereof, unless so ordered by the county court of the county in which the proposed highway is situated; such order shall be made on the certificate of the commissioners of highways of the town or towns in which the proposed highway is situated, showing that the public interest will be greatly promoted by the laying out and opening of such highway, and that commissioners appointed by the court have certified that it is necessary; a copy of the certificate, with eight days notice of the time and place of hearing before the county court, shall be served on the owners of the land, or if they are not residents of the county, upon the occupants; the county court upon such certificates, and the proofs and other proceedings therein, may order the highway to be laid out and opened, if it deems it necessary and proper. The commissioners of highways shall then present the order of the county court, with the certificate and proofs upon which it was granted, certified by such court to the general term of the supreme court in the judicial department in which the land is situated, upon the usual notice of motion, served upon the owner or occupant, or the attorney who appeared for them in the county court. If such general term of the supreme court shall confirm the order of the county court, the commissioners of highways shall then lay out and open such highway as in other cases. The provisions of this section shall not apply to vineyards planted, or to buildings, fixtures, erections, yards or inclosures, made or placed on such land after an application for the laying out and opening the highway shall have been made. In case the highway to be laid out shall constitute an extension or continuation of a public highway already in use, and shall not, as to such new portion, exceed half a mile in length, the commissioners may lay out such extension or continuation, of a width of less than three rods, provided, however, that it be not less than the widest part of the highway of which it is an extension or continuation. In such case the commissioners shall specify in their certificate the precise width of the new portion of such highway, and shall certify that such width is as great at least as the widest part of the highway of which it is a continuation or extension. Id., § 90, as am'd L. 1895, c. 508.

[Note.- Revised from L. 1869, c. 24, § 1; L. 1873, c. 773, and 1 R. S. *p. 514, §§ 57, 58; p. 517, § 80. (See Birdseye's R. S., 1st ed., pp. 1345, 1346, 1355, 1362.) The last two sentences were added in 1895. The first part of the section does not vary very materially from the former law.]

7 Misc. 214; 7 Wend. 265; 6 id. 464; 5 id. 580; 4 Cow. 190; 27 Barb. 96; 6 id. 612; 19 id. 179; 14 Abb. Pr. 305; 2 T. & C. 362; 3 id. 793; 38 N. Y. 360; 91 id. 561; 24 id. 351, 559, 562; 5 id. 572; 57 id. 549; 8 Hun, 566; 27 id. 218; 43 id. 109; 27 id. 128; 43 id. 67; 58 id. 371; 19 id. 264; 10 id. 411; 85 id. 446; 38 id. 43; 3 Hill, 460; 2 id. 443; 6 Paige, 86; 4 id. 519; 1 Hun, 530; s. c. 3 T. & C. 766; 30 N. Y. St. R. 367; 34 id. 719; 62 id. 189; 54 id. 936; 58 id. 555; 12 N. Y. Supp. 22.

91 Laying out highways through burying-grounds. No private road or highway shall be laid out or constructed upon or through any burying ground, unless the remains therein contained are first carefully removed, and properly reinterred in some other burying ground, at the expense of the persons desiring such road or highway, and pursuant to an order of the county court of the county in which the same is situated, obtained upon notice to such persons as the court may direct. Id., 91.

[Note.-Revised from L. 1868, c. 843. § 1. (See Birdseye's R. S., 1st ed., p. 1362.) All after the words "desiring such road or highway" is new.]

62 Hun, 499; 82 id. 298; 42 N. Y. St. R. 838; 45 id. 215.

92 Costs, by whom paid. In all cases of assessments of damages by commissioners appointed by the court, the costs thereof shall be paid by the town except when reassessment of damages shall be had on the application of the party for whom the damages were assessed, and such damages shall not be increased on such reassessment, the costs shall be paid by the party applying for the reassessment; and when application shall be made by two or more persons for the reassessment of damages, all persons who may be liable for costs under this section, shall be liable in proportion to the amount of damages respectively assessed to them by the first assessment, and may be recovered by action in favor of any person entitled to the same. Each commissioner appointed by the court, for each day necessarily employed as such, shall be entitled to six dollars and his necessary expenses. L. 1890, c. 568, § 92.

[Note.-Revised from L. 1847, c. 455, § 7. (See Birdseye's R. S., 1st ed., p. 1351.) See note to § 83.] 82 Hun, 298; 63 N. Y. St. R. 577.

93 Damages assessed, and costs to be audited. All damages to be agreed upon, or which may be finally assessed, and costs against the town, as herein provided, shall be laid before the board of supervisors, by the supervisor of the town, to be audited with the charges of the commissioners, justices, surveyors, or other persons or officers employed in making the assessment, and for whose services the town shall be liable, and the amount shall be levied and collected in the town in which the highway is situated, and the money so collected shall be paid to the commissioners of highways of such town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges aforesaid. Id., § 93. [Note.- Revised from L. 1847, c. 455, § 23. (See Birdseye's R. S., 1st ed., p. 1351.) Without material change.]

20 N. Y. 256; 42 Barb. 263; 82 Hun, 298.

94 When officers of different towns disagree about highway. When the commissioners of highways of any town, or officers of any village or city having the powers of commissioners of highways, shall differ with the commissioners of highways of any other town, or with the officers of such a village or city having the powers of commissioners of highways in the same county, relating to the laying out of a new highway or altering an old highway extending into both towns, or a town and a village or city, or when commissioners of highways of a town in one county, shall differ with the commissioners of highways of a town, or the officers of a village or city having the powers of commissioners of highways, in another county, relating to the laying out of a new highway, or the alteration of an old highway, which shall extend into both counties, the commissioners of highways of both towns, or the officers of the village or city having such powers, shall meet on five days written notice, specifying the time and place, within some one of such towns, villages, or cities, given by either of such commissioners or officers having powers of commissioners of highways, to make their determination in writing, upon the subject of their differences. If they can not agree, they or either of them may certify the fact of their disagreement to the county court of the county, if the proposed highway is all in one county, or if in different counties, or if the county judge is disqualified or unable to act, to the supreme court; such court shall thereupon appoint three commissioners, freeholders of the county, not residents of the same town, village or city where the highway is located; or if between two counties, then freeholders of another county, who shall take the constitutional oath of office, and upon due notice to all persons interested, view the proposed highway, or proposed alteration of a highway, administer all necessary oaths, and take such evidence as they shall deem proper, and shall decide (subject to the approval of the court, as hereinafter provided) all questions that shall arise on the hearing, as to the laying out or altering of such highway, its location, width, grade and character of road-bed, or any point that may arise relating thereto; and if they decide to open or alter such highway, they shall ascertain and appraise the damages, if any, to the individual owners and occupants of the land through which such new or

altered highway is proposed to pass, and shall report such evidence and decision to such court, with their assessment of damages, if any, with all convenient speed. On the coming in of such report, the court may, by order, confirm, modify or set aside the report in whole or in part, and may order a new appraisal by the same or other commissioners, and shall decide all questions that may arise before it. And all orders and decisions in the matter shall be filed in the county clerk's office of each county where the highway is located, and shall be duly recorded therein. Id., § 94.

[Note.- Revised from L. 1881, c. 513, and 1 R. S. *p. 516, § 72. (See Birdseye's R. S., 1st ed., p. 1351.) In the main this follows the old law.]

26 How. Pr. 347; 38 N. Y. St. R. 732; 15 N. Y. Supp. 31, 33, 30, 32.

95 Difference about improvements. When the commissioners of highways of a town, or the officers of a village or city having the powers of commissioners of highways therein, shall desire to make a new or altered highway extending beyond the bounds of such town, village or city, a better highway than is usually made for a common highway, with a special grade or road-bed, drainage or improved plan, and are willing to bear the whole or a part of the expense thereof beyond such bounds, but can not agree in regard to the same, upon written application of either of the commissioners or officers, and notice to all parties interested, such court shall make an equitable adjustment of the matters, and may direct, that in consideration of the payment of such portion of the additional expense by the town, village or city that desires the improved and better highway, as shall be equitable, its officers, contractors, servants and agents may go into such town, village or city, and make the grade and road-bed, and do whatever may be necessary and proper for the completion of such better highway, advancing the money to do it; the amount of damages to each owner or occupant, shall be ascertained and determined by commissioners, who shall be appointed, and whose proceedings shall be conducted in the manner provided by the last preceding section; and upon the coming in of their report of damages, and of the expenses paid, such court shall, on notice to all parties interested, direct that the amount of damages assessed to each owner or occupant, if any, and all such expenses be paid by each, any or all of such towns, villages or cities as shall be just and equitable, and the damages and expenses assessed and allowed, as in this and the last preceding sections, shall be paid and collected as if fixed by the commissioners of highways of the towns, or the officers of such villages or cities having the powers of such commissioners. Every commissioner appointed as herein provided, shall be paid six dollars for each day actually and necessarily employed in such service and necessary expenses. Id., § 95.

[Note. Revised from L. 1881, c. 513, and 1 R. S. *p. 516, § 72. (See Birdseye's R. S., 1st ed., p. 1352.) In the main this follows the old law.]

26 How. Pr. 347; 38 N. Y. St. R. 732; 15 N. Y. Supp. 30, 31, 33, 32.

96 Highway in two or more towns. When application is made to lay out, alter or discontinue a highway located in two or more towns, all notices or proceedings required to be served upon the commissioners of highways, shall be served upon the commissioners of highways of each town; and the commissioners appointed by the court, shall determine the amount of damages to be paid by each town, and when the towns are in different counties, the application for the appointment of commissioners shall be made to a special term of the supreme court held in the district where the highway or some part of it is located; and the same proceedings shall thereafter be had in the supreme court of such district as are authorized by this chapter to, be had in the county court. Id., § 96.

New.

90 Hun, 500.

An ap

97 Laying out, dividing and maintaining highway upon town line. plication to lay out a highway upon the line between two or more towns shall be made to the commissioners of highways of each town, who shall act together in the matter; and, upon laying out any such highway, they shall divide into two or more highway districts, in such manner that the labor and expense of open