#### The People *ex rel.*John P. Titsworth, Commissioner, *v.*Edwin A. Nash, County Judge of Livingston County, Resp't.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

1. Certiorari—Highways.

*Certiorari*will lie to review an order of a county judge confirming the report of commissioners appointed to lay out a highway.

2. Highways—Different towns.

The provisions of 1 R. S., m. p. 516, § 72, 8th ed., R. S., 1377, relative to disagreements between commissioners of highways of different towns as to the laying out of a highway extending into both towns, apply equally to roads which lie upon and to roads which cross the town line.

3. Same—Monuments.

A monument may be disregarded where mention of it is manifestly inconsistent with the description intended.

Certiorari to the county judge of Livingston county to review an order made by him confirming the report of commissioners appointed by him, in proceedings to lay out a highway.

*A. J.*Abbott, for the relator; *C. J. Bissell,*for commissioner of highways of the town of West Sparta.

Dwight, P. J.

The objection that *certiorari*will not lie to review the order in questioiris not well taken. The order is not a “ determination which can he adequately reviewed by an appeal to a court or to some other body or officer.” Code of Civ. Pro.,. § 2122. The order is not one “ made by a court of record * * * or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision ; ” nor “ instituted before another judge and transferred to, or- continued before, the judge who made the final order,” id., § 1357, and therefore an appeal cannot be taken therefrom. In proceedings of this character the county judge acts not as a judge of any court, hut as an officer specially designated by statute under his title of office. Besides, the proceeding is not instituted before him, or before any other judge, but before a commissioner or commissioners of highways of the proper town or towns.

The writ of *.certiorari*was, therefore, properly issued in this case “ to review the determination of * * * an officer,” Code of Civ. Pro., § 2120, in a case “ where the writ may be issued at common law by a court of general jurisdiction, and the right to the writ * ** **is not expressly taken away by statute.” Id., subd. 2.

By the return of the county judge to the writ of certiorari, it appears that the proceeding was instituted by the separate application of a resident of each of the towns of G-roveland and West Sparta, liable to be assessed for highway labor therein, addressed to the commissioner of highways of each of those towns respectively, for the laying out of a new highway. The description of the proposed new highway was the same in both applications, and was as follows : “ To commence upon the easterly side of the now present highway leading from Dansville to Mt. Morris, at a point *731upon the town line between the said town and the town of, “ in the one case Groveland, in the other West Sparta, thence easterly up said town line to McNair’s station.”

It further appears from the return, that the commissioners of the towns of Groveland and West Sparta, respectively, united in a certificate to the county judge of Livingston county, that they were “ unable to agree in regard to the opening and construction of a proposed highway, extending into both of said towns, beginning at or near the Erie railway depot in said town of Grove-land, and running thence westerly along or near the town line between said towns of Groveland and West Sparta, to a point in the highway leading from Dansville to Mt. Morris, near Kysorville in said town of West Sparta.” The commissioners also certified that juries had been drawn in each of said towns to consider and certify as to the necessity and propriety of the said proposed highway, and that the jury in the town of West Sparta certified that the road was necessary and proper, and the jury in the town of Groveland that it was not necessary or proper. And the commissioners of highways thereupon ask for the appointment of three commissioners to lay out the road and appraise the damages.

It further appears from the return that the county judge thereupon made an order appointing three commissioners “ to hear and decide upon all questions relating to the laying out of said road,” which was described in the order as it was in the certificate of disagreement of the highway commissioners, above quoted; and that the commissioners so appointed went on and viewed the line of the proposed road; took evidence relating to its location, determined to lay out the road, located it accordingly to a survey and description contained in their report, and ascertained and appraised the damages, consequent thereon, to the owners and occupants of lands taken therefor. The description of the road thus laid out is as follows: “ Beginning at a, point in the said town of Grove-land where the center line of the highway leading from the flouring mill at Groveland station to McNair’s station meets the east line of the lands of the Erie and Genesee Valley B. B.; thence westerly on a straight line to the point where the division line of the towns of Groveland and West Sparta crosses the west line of the land of the Erie and Genesee Valley B. B.; thence westerly along the division line between said towns to a point on the said town line 350 feet east of the Dansville and Mt. Morris highway'; thence south 51 degrees 51 minutes west to a point in the east line of the said Dansville and Mt. Morris highway in said town of West Sparta. Said line to be the central line of said road, and said road to be three rods in width.” All this, with the evidence taken by them, and other matters, the commissioners reported to the county judge who thereupon made his order in all things confirming such report.

The *certiorari*was issued on the application of the relator, the commissioner of highways of the town of Groveland, to review that order and all the proceedings leading up to it, and it is argued here that the county judge had no jurisdiction of the proceeding, or to make either of the orders contained in his return, nor, con*732sequently, had the three commissioners any jurisdiction to lay out the road or to do any of the acts in respect thereto mentioned in their report.

Whether this contention is well based depends upon the true construction of the provisions of the statute relating to highways between towns, as they existed prior to the much needed revision of the highway laws by the act of 1890. Those provisions, in their full extent, will be found to be contained in § 72, *et seq.*of article 4, of chap. 16, of part 1, of the Revised Statutes (1 R. S., 516, § 72, (as amended by Laws of 1881, chap. 513. §§ 73, 74, 75). It was under § 72 that all the steps in this proceeding were taken. The application of that section is shown by its introductory words which, so far as it relates to towns of the same county and to new roads, are as follows: “ When the commissioners of highways of any town * * * shall disagree with the commissioners of any other town, * . * * relating to the laying out of a new road * * * *extending into both towns,** * * the commissioners of both towns shall meet, etc.” The next three or four sections, § 73, *et seq.*contain special provisions relating to the laying out of a highway “ *upon the line between two towns."*The contention of the relator, appellant, in this case, is that §§ 72 and 73 apply each to a distinct and separate class of highways; that the former class includes only those which cross the line of towns, extending longitudinally into each; while the latter class includes all those which are laid out (in the language, of § 73) upon such line or as near thereto as the convenience of the ground will permit.” The difficulty with this construction of the section is that its adoption would leave no provision for cases of the latter class in which the commissioners of the two towns should fail to agree upon the necessity, propriety and location of the road, which would be a state of things as liable to occur in the case of roads of the latter class, as in the case of those of the former.

Section 73 provides that town line roads shall be laid out by the joint action of commissioners of both towns, and the next following sections prescribe special duties for those commissioners, in connection with the laying out of such roads. But unless recourse can be had to the provisions of § 72 there is absolutely no provision in the statute for the laying out of a town line road if the commissioners of the two towns fail to agree. This consideration seems to us controlling in favor of the conclusion that the provisions of § 72 were intended to apply equally to roads which lie upon as to those which cross the town line, and to prescribe a mode of procedure to procure the laying out of a road of either class in case of a disagreement of the commissioners of the two towns. The construction adopted does no great violence to the language of § 72 ; a road may, without much impropriety, be described as extending into both towns when it lies partly in each, though the extension into either may be lateral, or, for short distances, alternately, rather than continuous in the direction of the general course of the road. At least it may be said that the uncertainty or incongruity of the provisions in question is slight *733compared with that exhibited by many of the provisions of the highway law as it stood before the late revision.

Another objection to the proceeding is, that the description of the proposed road contained in the certificate of disagreement of the two commissioners, is inconsistent with that contained in the original application for the laying out of the road, and also with the survey and description contained in the report of the three commissioners. But upon careful comparison the discrepancy will not be found to be essential. The description in the application began at the west end of the proposed road, where the Bansville and Mt. Morris road crosses the town line, and ran east on that line to McNair’s station. The description in the certificate of disagreement began at the east end of the road, at the railroad station, which we understand to be McNair’s, and ran west along the town line to a point in the same Bansville and Mt. Morris road, near Kysorville.

The only discrepancy between the two descriptions is that in the latter the western terminus of the road is described as being near Kysorville. The terminus is necessarily the same because it is at the point of intersection of the town line with the well known highway mentioned. It seems that in point of fact Kysorville is nearly a mile south and east of that point. The mistake seems not to have been in the location of the terminus of the road, but in the location of Kysorville; which we are told is a collection of not more than two or three houses. The case is clearly one where course and distance must prevail over monuments, or rather, perhaps, where one monument must prevail over another. For here the course westerly along the- town line between Groveland and West Sparta to the intersection of that line with the Bansville and Mt. Morris road is absolutely definite and not to be misunderstood because the point thus reached is erroneously described as being near another point from which it is in fact nearly a mile distant. The authorities are abundant which justify the disregard of monuments where the mention of them is manifestly inconsistent with the description intended. *Baldwin*v. *Brown,*16 N. Y., 361; *Higinboiham*v. *Stoddard,*72 N. Y., 94.

So also the course and location of the road adopted by the three commissioners, and described in their report, deviates no further from the previous descriptions than was entirely justified under the statute. 1 R. S., 516, § 73, *supra.*

It seems that the contention of the relator before the three commissioners did not embrace the objection to their jurisdiction, nor to that of the county judge, argued here, but was in favor of the location of the proposed road on a line, direct from McNair’s Station in a southwesterly direction, to Kysorville, as a more eligible route than the one petitioned for and upon which the road was located. Of that route it is sufficient to say that it was not the road petitioned for and that if it had been all the proceedings here reviewed would have been clearly without jurisdiction. It was a route wholly within the town of West Sparta and- § 72, •under which all the proceedings were taken, could have had no *734application to the case.' No other objection than those considered has been argued before us.

The writ of *certiorari*should be dismissed.

Macombeb, J., concurs.