#### The People *ex relatione*Newton and Kent, *vs.*The Supervisors of the County of Oneida.

ALBANY,

March, 1838.

Where a highway is laid out along the line of a farm, taking no portion of the land of the owner, but subjecting him to the expense of maintaining the whole of a fence, the expense of the half of which only was formerly borne by him, such owner, under the existing highway act, is not entitled to compensation; and although damages are allowed to him by the jury empannelled on the occasion, the supervisors of the county have no authority to cause the same to be collected. It is a *casus omissus.*

F. C. White moved for a *mandamus*to the board of supervisors of Oneida, requiring them to settle and liquidate, and cause to be levied and collected, the damages which the relators had sustained by the laying out of a public highway in the town -of Marcy *adjoining*their lands. The road was *wholly on the land of other persons,*but ran along *by the side*of the land of the relators, which they keep enclosed. Before the road was laid out they were only obliged to maintain half of the division fence, but since the highway has become their boundary they are obliged to maintain the whole of the fence. Their- damages were assessed by a jury, and the verdict was laid before the supervisors at their *103annual meeting m November last. The board was of opinion , , , , , i that the case had not been provided for by the statute, and passed a resolution declaring that the facts of the case did not authorize the board to assess damages.

*By the Court,*

Bronson, J.

f think the relators were not entitled to damages—that the case has not been provided for by the statute. 1 R. S. 512, art. 4. The language of the statute is broad enough to include consequential damages, but they can only be allowed where some portion of the applicant’s land has been taken for the highway. The damages may in certain cases be ascertained by the agreement of *the owner*and the commissioners. § 64. If not agreed on, they are to be assessed by a jury, on the application of the commissioners, or of *the owner of the land through which*the road is laid out; but the jury must not be of kin to *the owner of such land.*§ 65. The jury are to view and examine *the premises.*§ 67. The commissioners are to pay *the owner*the sum assessed to him. $ 70. These piovisions seem plainly to imply that damages are only given where land has been taken from the owner. It is' said that the word *through,*in the 65th section, does not necessarily mean that the road must be laid out *over*or *across*the land; that it may apply where the highway is laid *against*or *hy the side*of the applicant’s land. But if we refer to the preceding sections where the same word is used, it will be seen that this construction cannot be maintained. No road shall be laid out *through*any orchard or garden, without the consent of the owner, nor *through*any building, § 57, nor *through*enclosed, improved or cultivated land, without the consent of the owner or occupant thereof. § 58. Every person who shall apply for the laying out of a highway *through*any such land, shall give notice, and specify the several tracts of land *through*which the road is proposed to be laid, § 59. Notice must be given to the occupant of the land *through*which the road is to run. § 62. Then come the sections already noticed, which provide for ascertaining the damages by reason of laying out and opening *such*road. It may be very proper that the relators *104should have a remedy, but it has not, I think, been provided by this statute.

The board of supervisors had no right to go back of the assessment by the jury, and inquire into the regularity of the previous proceedings. The People v. Supervisors of Kings, 7 Wendell, 530. But they had power to examine into the principles on which the assessment had been made, and to increase or reduce the damages. § 69. If the relators were not originally entitle to any damages, the board might reduce the assessment to a mere nomial sum; and if they erred in rejecting the claim altogether, it does not seem to be a proper case for allowing a mandamus.

Motion denied.