#### Matter of the Application for Opening a New Highway in the Town of Whitestown.

(County Court, Oneida County,

June, 1898.)

Highway — When one proposed is for the public use — Review of determination.

Proof that a proposed highway will benefit three farms, the occupants of at least two of which have no present means of egress other than private roads or the towpath of the Brie canal, sufficiently presents to commissioners, appointed to determine the necessity of the proposed highway and to assess the damages, the question of fact where the proposed highway is for a public use, required by the public necessity, and their determination .that it is for such use will not;, in the absence of some error of law, be reviewed by the County Court..

This is a motion by Thomas Ilirley to vacate the decision of the commissioners appointed to determine the necessity of the proposed highway and to assess the damages of the laying out and opening of the same if such highway were deemed necessary. The decision was in favor of laying out said highway.

*151F. G. Fincke, for motion.

C. D. Prescott, opposed.

Dunmore, J.

The motion to vacate the decision of the commissioners is based upon two grounds. It is claimed.

First. That the proof shows that there is no public necessity for the highway.

Second. That the damages awarded Kirley are inadequate and unjust.

As to the first ground of the motion it appears from the evidence that H. H. Williams owns a farm of 112 acres which would adjoin the proposed highway on the westerly, side near its northerly end. Immediately west of the Williams farm are the Hooper farm of 112 acres and the Tryon farm of seventy-five acres, all of which are occupied. ■ No highway touches either the Williams or the Hooper farms, and the occupants have no means of egress to any highway except over the towpath of the Erie Canal or through some other person’s private road. The evidence does not show whether the occupants of the Tryon farm have any means of egress or not. Contestant -Kirley contends that as only the occupants of the three farms are to be benefited by this proposed highway, it is essentially a private road and is not a public benefit and, therefore, not a public necessity, and consequently, as the law does not permit the property of A. to be taken under the right of eminent domain for the benefit of B., the commissioners exceeded their powers, or, at least,- their duties in deciding in favor of laying out said highway. , The question raised has frequently been the subject of adjudication in the courts of the different states. To constitute a *public*use authorizing the exercise of the right of eminent domain, it is not required that the entire community, or even a" considerable portion of it, should directly participate in the benefits to be derived from the property taken. Riche v. Bar Harbor Water Co., 28 Alb. L. J. 498; O’Reiley v. Kankakee V. D. Co., 32 Ind. 185.

In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause, everything which tends to enlarge the resources, increase the industrial energies, and promote the productive power of any considerable number of the inhabitants of a section of the state, or which leads to the growth of towns, and the creation of . new sources for the employment of private capital and labor indirectly contributes to the general wel*152fare and to the prosperity of the whole community. Talbot v. Hudson, 16 Gray, 425.

“ The use contemplated is for all alike, and upon the same terms. It is for the public, however few the number of that public may be who are expected to avail themselves of its benefits.” O’Reiley v. Kankakee V. D. Co., 32 Ind. 186.

The words “ public use ” mean a use which concerns the whole community, as distinguished from' a particular individual or a particular number of individuals. It is not necessary, however, that each and every individual member of society should have the same degree of interest in this use, or be personally or directly' affected by it, in order to make it public. Gilmer v. Lime Point, 18 Cal. 251.

It is well settled, said the late Judge Talcott, that in order to constitute a public use, within the meaning of the' Constitution, it is not necessary that the improvement should directly benefit the people of the whole state; but the direct public benefit content plated may be confined to a particular community. Bloomfield, etc., N. G. L. Co. v. Richardson, 63 Barb. 448.

The Supreme Court of Iowa stated the rule as follows: “• Without a road, or the means of getting' a road, to the farm of the citizen, he could not well obey the *venire*that commands him to attend at the court as a juror, could not well pay his taxes, vote, reach the church or send his children to school. Hence the state may properly provide for the establishment of a public road or highway to enable every citizen to discharge his, duties. The state is not bound to allow its citizens to be walled in, insulated, imprisoned, but may provide them a way of deliverance. And' taking so mucl of A.’s land as may be necessary to establish a public highway, to enable B. to have an outlet to the market, and to put him in communication with his neighbors, with the town, with the church, with the school, etc., is not in a just sense, although B. be the person primarily and even principally benefited, the taking of A.’s property for the private use of B. but for the general good.” Bankhead v. Brown, 25 Iowa, 546.

The Supreme Court of Ohio recently stated the rule as,follows: “A township road in this state is a public highway, and subject to the use of all persons having occasion to use it; and it may be highly necessary, to enable the person or persons most immediately, and directly interested in it, to discharge properly, and without trespassing on their neighbors’ premises, many of the public duties en*153joined upon them as citizens of the state. In the establishment of such roads, therefore, by the exercise of the right of eminent domain, private property may be made subservient to the public welfare.” Ferris v. Bramble, 5 Ohio St. 113.

Roads leading from the main road which runs through the country to the residences or farms of individuals, are of public concern and under the control of the government. Taking private property for the purposes of such roads is not a taking for private use. They are open to every one, who may have occasion to use them, and are therefore public. Their character as public roads is .unaffected by the circumstance, that in view of their situation, they are but little used and are mainly convenient for the use of a few individuals.” Sherman v. Buick, 32 Cal. 255; Masters v. McHolland, 12 Kans. 27; State v. Bishop, 39 N. J. L. 226.

It is not essential to a highway, at common law or under our statute, that it be a thoroughfare. A road may be laid out by the public authority which has no issue at one extremity, and abuts upon private ground. People v. Kingman, 24 N. Y. 559.

The Iowa» Supreme Court recently held that it was proper to lay out a public road which led to the farm of one man consisting of 160 acres. Judge Adams in writing the opinion says: “But, to our mind, the more important consideration is that the public is entitled tp the road to reach the plaintiff. He is liable to be summoned as a witness or to sit on a jury. The law cannot hold that it is any citizen’s,right to render himself inaccessible. This road * being the only road between the plaintiff and the public, it may properly, we think, be deemed a public road.” Johnson v. Supervisors, 61 Iowa, 91; Pagels v. Oaks, 64 id. 198; Lewis on Eminent Domain, •§ 166; Elliott on Roads and Streets, 141.

It is no objection to the validity of the proceedings of the County Court, in laying out a cross road, or lane, that it is laid only to land not occupied as a dwelling place. Paine v. Leicester, 22 Vt. 44.

Upon a careful review of the authorities I am satisfied that the evidence in this case fairly presented a question of fact for the commissioners as to whether the proposed highway was a public necessity. The statute contemplates that that question of fact shall be decided by the commissioners and not by the court. Kelsey v. King, 32 Barb. 410; Dunham v. Village of Hyde Park, 75 Ill. 374.

It has been held that the court can no more reverse the finding of those tribunals, than of a jury, in a given case. Paine v. Leicester, 22 Vt. 49; Hartwell v. Armstrong, 19 Barb. 166.

*154In People ex rel. Hanford v. Thayer, 88 Hun, 136, .it Was held that the County Court had power to review every question that the Supreme Court could, upon a writ of certiorari. This was cited with approval in Matter of Lawton, 22 Misc. Rep. 426.

The court doubtless has the power to vacate the decision' of the commissioners as it has the power to set aside the verdict of a jury, but the court is not expected to exercise that power arbitrarily or except for manifest error in either ■ case. This rule applies not only to the question of public necessity of the highway but also to the amount of damages awarded.

In the Matter of N. Y. W. S. & B. R. R. Co., 37 Hun, 317, •the court said: “ The commissioners viewed the premises and had means for mating up their judgment not possessed by this court and which could not be returned to us.”

The commissioners in this case were selected with special reference to their fitness for the performance of the duties assigned. They are all men of high character and well qualified. They are practical men of good judgment. They have examined the premises in question, and seen' the appearance of the witnesses who gave oral testimony. They are to be guided not only by the testimony but also by their observation and their own judgment as to the situation and values.

It was held in Crouch v. Gutmann, 134 N. Y. 45 (55), that where by stipulation of the parties a referee was given an opportunity of viewing the premises and mating perspnal inspection of the work, and he availed himself of such opportunity, that his decision could not be set aside as against the evidence.'

Here it is made the duty of the commissioners by statute to personally view the premises, and why should not their judgment based upon personal investigation be as conclusive as that of the referee in the case cited. For the court to arbitrarily set aside their decision either as to the public necessity of the highway or as to the damages awarded, unless some error of law is plainly manifest, would be to usurp the functions which the statute comiera upon them, rather than a judicial exercise of its own discretion^ ary power. Matter of Carpenter, 11 Misc. Rep. 690.

I am, therefore, of the opinion that the motion to vacate the decision should be denied and the decision of the commissioners confirmed.

Motion denied.