On the Road Again 2016 - cdn.ymaws.com · On the Road Again Prepared for the 2016 NYSAPLS Annual...

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On the Road AgainPrepared for the 2016 NYSAPLS Annual Conference

Turning Stone CasinoVerona, New York

Laura E. Ayers, Esq.The Law Office of Laura E. Ayers, Esq.

223 Church StreetFultonville, NY 12072

(518) 922-5086

www. lauraayerslaw.com

© Laura E. Ayers

Introduction

Why does a Land Surveyor need to know the Highway

Law?

Key Questions to ask:

1. What is the character of the Road?

2. What is the width of the Road?

3. What interest does the public have in the Road?

Introduction

STATE COURTS

Trial Courts

Appellate Divisions

The Court of Appeals

FEDERAL COURTS IN NY

District Courts

Bankruptcy Court

U.S. Circuit Courts ofAppeals

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New York State CourtStructure

New York State CourtReporters and Citations

Court of Appeals:N.Y. ,N.Y.2d,

N.Y.3d,N.E. and

N.E.2d

AppellateDivisions:A.D.,

A.D.2d,

A.D.3d,

N.Y.S. and

N.Y.S.2d

Trial Courts:Misc.,Misc.2d,

N.Y.S.,N.Y.S.2d

Federal Court Structure

U.S. SUPREME COURT

U.S. Court of Appeals

12 Regional Circuit Courts of Appeal

1 U.S. Court of Appeals for the Federal Circuit

U.S. District Courts

94 Judicial Districts

U.S. Bankruptcy Court

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Federal Court Reporters andCitations

U.S. Supreme

U.S.

S. Ct.

Federal Circuit Courts

F.

F.2d

F.3d

Federal District Courts

F. Supp.

F. Supp.2d.

Definitions

Definition: HIGHWAY

Highway: (from case law)

A Public way of passage

Very broad and includes:

canals,

navigable waterways,

railroads,

foot ways,

carriage paths,

horse ways

alleys,

streets,

avenues,

lanes,

roads,

bridges,

plank roads and

Turnpikes.

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Definitions:

Plank Roads andTurnpikes

were public highwaysdespite being maintainedby private corporationsand operating for a profit

Military Roads

Not built by the Military,but may have been usedby the Military during thewar of 1812

Generally connectednavigable bodies of water

Authorized by legislativeact, similar to StateRoutes

Definition: HIGHWAY

Highway: NY High Law §2(4)

Includes the TraveledTrack &

necessary sluices,

drains,

ditches,

waterways,

embankments,

retainingwalls and

culverts twenty feet orless in width and

the approaches of anybridge or culvertbeginning at the bank ofthe abutments.

The pavement over anysuch bridge or culvert

Sidewalks*

PublicHighwayUS Route20 East Town ofPrincetown

Albany Skyline in Distance

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Definition: PUBLICHIGHWAY

People v. County of Westchester, 282 N.Y. 224 (1940):

The test [of a whether a way is a public highway] wouldappear to be whether the public has a general right ofpassage in motor vehicles. If it have, then that is the

measuring rod to be applied under the statute indetermining the right of the public to the free use of all

public passages or ways, however they may be termed.

Private Road

Definition: PRIVATE ROAD

Until they become public highways, all roads are

presumed to be private. Carmen v. Hewitt, 105 N.Y.S.2d239 (Suffolk Co., 1951)

The private road is a way for the exclusive use for travel

by a particular person or particular persons. It is notfor public use in any sense. People v. Meyer, 26 Misc 117,

(1899).

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Pirman v. Confer, 273 N.Y. 357(1937)

1876 Atlas

Definitions: Town Superintendentand County Eng. &

SuperintendentHigh Law §2(3)

The term "townsuperintendent," when soused, shall mean the townsuperintendent ofhighways.

High Law §2(2)

The term "countyengineer" or "countysuperintendent," when soused, shall mean thecounty engineer ofhighways or countysuperintendent ofhighways respectively.

Statutory Classification ofHighways

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Overview of Statutory Framework

Five classes of highways

1. State Highways

2. Controlled Access Highways

3. State Thruways

4. County Roads

5. Town Highways

What About Village & City Streets?

State HighwaysRamp onto I-88 Eastbound at Exit 24

State Highways

State highways are those constructed or improved … atthe sole expense of the state including the highwaysspecified and described in sections three hundred andforty and three hundred and forty-one of this chapterand acts amendatory thereof, including the highwaysheretofore classified or referred to as county highwayselsewhere in this chapter and heretofore constructed orimproved at the joint expense of state, county andtown, or state and county as heretofore provided bylaw.

Highway Law §3(1)

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State Highways

Interstate Highways: Article 12 Section 340-b Lists

Interstate Highways locations and general directionality

State Expressways: Article 12 Section 340-c listsExpressways locations and general directionality

State Highways: Article 12 Section 341 lists/designatesState Highway Routes by county, gives a generaldescription of their route

State Highways

Controlled AccessHighwaysInterstate 88Exit 24: Duanesburg

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Controlled Access Highway

Highway Law §3(2)

Controlled access highways are those state highways which areentirely or partly constructed, reconstructed or improved ata location where no public highway theretofore existed andto and from which the owners or occupants of abuttingproperty or of any other persons shall have no right of accesseither as pedestrians, as operators of vehicles or in any othercapacity, excepting at junctions of such highways with otherpublic highways, and also excepting as such access may bereserved pursuant to the description and map of theproperty which has been or which hereafter shall beacquired in accordance with this chapter for the purpose ofsuch controlled access highways.

State ThruwaysSchoharieCreek Bridge Collapsebetween Exits 27 (Amsterdam)and Exit 28 (Fonda-Fultonville)

Ten Lives Lost, April 5, 1987

State Thruways

Highway Law §3(3)

“State thruways are those highways specified anddescribed in section three hundred forty-nine-a of thischapter, constructed, improved or reconstructed as

provided in such section.”

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State Thruways

Highway Law § 349

“All the provisions of this chapter relating to statehighways … shall apply to the construction orimprovement and the control and maintenance of state

thruways in the same manner as though they weredesignated as state highways.”

County RoadsSchoharie County Road #35Town of Esperance

County Roads

Highway Law §3(4)

County roads are those roads constructed, improved,maintained and repaired under article six of thischapter and

roads constructed or improved under a general orspecial law, which are maintained by the county

Why aren’t they called County Highways?

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Town HighwaysCharleston Town Road through State ForestMontgomery County

Town Highways

Highway Law §3(5)

Town highways are those constructed, improved ormaintained by the town with the aid of the state orcounty, under the provisions of this chapter, including

all highways in towns, outside of incorporated villagesconstituting separate road districts which do not

belong to either of the two preceding classes.

The CREATION of Highways

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Overview:

Four Methods:

1. Legislative Acts,

2. Direct action of public authorities pursuant to statute,

3. Dedication or

4. Prescription (use).

Legislative Act: Turnpikes

Individual TurnpikeCompanies were createdby Special Act of theLegislature beginning in1797


Private Companies were given specific Charters to:

1. Acquire and dispose of real property,

2. Construct the turnpike & collect tolls, and

3. Dissolve.

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The Individual Charters also:

1. Set forth the general course of the turnpike,

2. the width of the turnpike,

3. the amount of tolls to be collected,

4. the spacing of toll booths (sometimes) and

5. The amount of stock to be issued and dividends to be

paid.


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“shall cause the said road to be laid out, thirty feet wide, betweenthe ditches(when ditchesshall be necessary) eighteen feet of which shall be bedded withwood, stone, gravel or any other hard substance…”

Legislative Act:TurnpikesThe mandatory spacing of toll booths lead to apractice called “Shunpiking”


Laws of 1807 Chapter 38

Standardized Turnpikes after 1807

1. Survey required

2. Releases/Damages filed

3. Set a mandatory width of 4 Rods

4. Upon dissolution, title to the turnpike vested in NYS

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Legislative Act: Plank Roads

Also created by Special Act of the Legislature with

specific Charters

First one chartered in 1847

All the rage after the Erie Canal (1825) & first RR were

built

Need for short, fast feeder roads


Built from Planks

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Legislative Act: State Routes

§ 341. Designation of state highways

The state highway system shall consist of the highwaysdesignated and set forth in this section together withthe highways, streets or roads, or portions thereof,

designated or authorized to be a part of the statehighway system pursuant to other sections of this

chapter or by special legislative acts heretofore orhereafter enacted….

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High Law § 341 lists all 62 Counties

Generally describes the course of all State Highwayswithin each County

For Example: Albany Co:

“Beginning at the Greene-Albany county line, thencerunning generally northerly through or near the villageof Ravena and the hamlets of Coeymans, Selkirk andBecker's Corners to the southern city line of Albany;”(Rt 9W)


The state can acquire property for highway purposes

using Eminent Domain pursuant to:

High Law §29 (pursuant to the Federal DefenseHighway Act of 1941) and

High Law §30 for state highway purposes.

StatutoryProceedingsCounty Roads

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Statutory Proceedings: CountyRds

All existing County Roads are to be shown on the

County Road Map, which is filed in the CountyClerk’s Office and the County DPW.

THE OFFICIAL COUNTY ROAD MAP

CONTROLS

High Law §115 - Preparation of map showing proposedcounty road system


Town of Huntington v. County of Suffolk, 79 AD3d 207 (2d Dep’t2010)

Town had been maintaining Roadsdepicted on the County RoadSystem Map

Personal injury accident occurred due to allegedly negligentmaintenance

Town & County pointed fingers at each other regardingLiability

COURT RULED: 1933 Highway Law shifted responsibility formaintaining Town Roads from Town to County, if shown on theCounty’sOfficial County Road System Map.


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High Law §131-b: County highways and bridges

1. A board of supervisors may, when satisfied that it isfor the interest of the county, lay out, construct, open,alter or discontinue a county highway therein, or cause

the same to be done, and construct, repair or abandona county bridge therein, or cause the same to be done

when the board shall deem that the interest of thecounty will be promoted thereby.

Statutory Proceedings: County Rd

County can acquire land for County Roads by:

Purchase via High Law §119 or

Condemnation via High Law §120

Statutory Proceedings: Town Hwys

“Laying Out” a Town Highway pursuant to:

Highway Law §171- Highways by dedication, and

Highway Law §180 - Limitations upon laying outhighways.

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Statutory Proceedings: Town Hwys

General Characteristics of a Town Highway “Laid Out”

by statute:

Survey & Order

“…The town superintendent shall incorporate thesurvey in an order to be signed by him, and to be filedand recorded in the office of the town clerk, who shallnote the time of recording the same. ..High Law §170

When created by statute, the town highway must belaid out as a three-rod road.

Statutory Proceedings: Town Hwy

Exceptions to the 3 Rod Rule include:

…where such highway is located on a sand beach separatedby more than two miles of water from the main body of thetown…High Law §171(1))

…In case the highway to be laid out shall constitute anextension or continuation of a public highway already in use… the town superintendent may lay out such extension orcontinuation of a width of less than three rods, provided,however, that it be not less than the widest part of thehighway of which it is an extension or continuation… HighLaw §180


Town Highways cannot be laid out in certain areas including:

…through any buildings or any fixtures or erections for thepurposeof tradeor manufactures, or any yard or enclosurenecessary to the use and enjoyment thereof…High Law §171

…No highway shall be laid out which shall be identical orsubstantially so with a highway previously discontinued orabandoned for public purposeswithin seven years of suchdiscontinuanceor abandonment, nor whereother land orproperty hasbeen conveyed to the town at the time of suchdiscontinuanceor abandonment in counties adjoining cities withupward of onemillion inhabitants… High Law §180

“No private road or highway shall be laid out or constructed uponor through any burying-ground…” High Law §181

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THE PROCEDURE TO LAY OUT A TOWN ROAD

BY STATUTE

Prerequisites:

A) a dedication (donation) of land to be used forhighway purposes (High Law §171) OR

B) an application made by a person or corporationrequesting that a public highway be laid out (High Law§172)

Statutory Proceeding: TownHwy

Requirements:

1) Consent of the Board to lay out the highway (HighLaw §171), and

2) Releases from the land owners (High Law §171), and

3) An Order laying out the highway filed in the TownClerk’s Office with the releases (High Law §171)

OR


if a public highway is needed and the Town cannot

obtain the land by dedication from the owners (read:cannot get the land donated to the public)

The Superintendent may apply to the Town Board and

if they consent, s/he can begin proceedings under theEminent Domain Procedure Law (EDPL)

High Law §173 - Petition for acquisition

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The Town Superintendent then brings an EDPLproceeding in Supreme Court requesting an order tofile an acquisition map.

When the acquisition map is filed: title vests in theTown. See Eminent Domain Procedure Law §402


To summarize:

the Town, following statutory law can either :

1. “lay out” by dedication/application or

2. condemn a new Town Highway.

Statutory Proceedings: VillageSt.

Village Streets are regulated by the Village Law vs. the

Highway Law

Village Law § 6-612. Street improvement or acceptance

The board of trustees may by resolution provide for laying

out, altering, widening, narrowing, discontinuing oraccepting the dedication of a street in the village.

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EminentDomainConcreteNY Monument at FoxCreek Bridge

SchoharieCounty

Eminent Domain

Eminent Domain is the power of the sovereign to acquire

private property

NY State Constitution mirrors the US Constitution

1. Public Purpose

2. Pay Just Compensation

Eminent Domain

Legislature has delegated the power of eminent domain

to the governmental subdivisions of the state

General Municipal Law §74

The Highway Law refers to/cross references theEminent Domain Procedure Law (EDPL) for the

procedure to acquire private property for highwaypurposes.

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Eminent Domain: PublicHwys

For Example:

Highway Law §173 states that the TownSuperintendent “may make application pursuant to theeminent domain procedure law to supreme court in

the judicial district in which such proposed highway issituated, to obtain an order for permission to file an

acquisition map of the property to be acquired.”

Eminent Domain: Public Hwys

Contrast with Article 6 (County Roads) of the Highway

Law §120- Petition to Acquire Lands

Sets forth its own procedure without reference to theEDPL

Sets forth the contents of a petition, the noticerequired, the venue of the proceeding, valuation ofland taken by 3 commissioners, etc.

Eminent Domain: Public Hwys

Recent Case on Point: Cortland Co. v. Miller, 72 A.D.3d 1436(3d Dep’t, 2010)

Holding: To the extent that the procedure outlined within theHighway Law is in conflict with the EDPL, the EDPLsupersedes the procedure in the Highway Law.

Purpose of the EDPL’s enactment in 1977 was to eliminatenearly 50 different [then existing] procedures and over 150separate sections of law, like 120 of the Highway Law,regarding condemnation.

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Eminent Domain: Public Hwy

To condemn property for highway purposes, the

condemnor must strictly follow the EDPL whichgenerally includes satisfying

the hearing (EDPL 201) and

notice (EDPL 202) requirements and

issuing a determination and findings (EDPL 204).


EDPL § 301. Policy

The condemnor, at all stages prior to or subsequent toan acquisition by eminent domain of real propertynecessary for a proposed public project shall make

every reasonable and expeditious effort to justlycompensate persons for such real property by

negotiation and agreement.


EDPL 204(B)

The condemnor, in its determination and findings,shall specify, but shall not be limited to the following:

(1) the public use, benefit or purpose to be served by theproposed public project;

(2) the approximate location for the proposed publicproject and the reasons for the selection of thatlocation;

(3) the general effect of the proposed project on theenvironment and residents of the locality;

(4) such other factors as it considers relevant.

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Eminent Domain: PublicHighway

When the acquisition map is filed: title vests in the

Municipality. See Eminent Domain Procedure Law§402

Unless an acquisition map, deed or offer of dedicationsays that fee is being acquired, the interest acquired ismerely an easement.

EminentDomain: Private

RoadKildareRoad

Tupper Lake, Franklin County

Private Roads: Colonial Roots

Chapter 31 of the Laws of 1775

‘An Act for the better laying out regulating and keepingin repair Public Roads and Highways in the City andCounty of Albany and the County of Tryon’ Passed

April 3, 1775

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Colonial Counties:

Tryon County Charlotte County

Private Road: Colonial Roots

Chapter 31 of the Laws of 1775 Section 12

And it be further enacted by the authority aforesaid,That upon application to the commissioners of anytown manor, district or precinct, for a private road, thecommissioners for the town manor district or precinctwhere such private road is desired to be laid out, shallview the same and if they are of opinion that such roadis absolutely necessary and twelve principal freeholdersunder oath, shall be of the same opinion, the saidcommissioners are hereby impowered (sic) to lay outsuch road,…


Chapter 31 of the Laws of 1775 Section 12 cont’

Observing the same steps in ascertaining what shall be paidof the land, as before directed to be taken in laying outpublic roads; and the value of the land over which such roadshall be laid, and all expenses and charges attending thelaying out and valuing the same shall be paid by the personor persons apply for the same, and the said road when solaid out shall be only for the use of the person or personswho shall pay for the same, his and their heirs and assigns,but not to be converted to any other use or purpose, thanthat of a road…

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Chapter 31 of the Laws of 1775 Section 12 cont’

…Provided always, that the owner or owners of theland through which such private road may be laid, shallnot be prevented from making use of such road, if he

shall signify his intention of making use of the same, atthe time when the jury are to ascertain the value of the

land, and the damages, by means of laying out suchroad.

Eminent Domain: Private Rd.

“The taking of private property for the construction of

private roads was permitted under the Colony of NewYork's statutes, and this provision was retained by the

State of New York until 1843. In 1843 the New YorkSupreme Court… held that the statute was

unconstitutional.” Pratt v. Allen, 116 Misc 2d 244 (Sup.Ct. Chemung Co., 1982)

New York State’s Constitution was thereafter amendedto allow private condemnation


Article 1 Section 7(c) of the NYS Constitution now

states:

Private roads may be opened in the manner to beprescribed by law; but in every case the necessity of the

road and the amount of all damage to be sustained bythe opening thereof shall be first determined by a jury

of freeholders, and such amount, together with theexpenses of the proceedings, shall be paid by theperson to be benefited.

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Eminent Domain: PrivateRoad

Highway Laws §§300-307 set forth the procedure

It is now well established that “Public Purpose” or“Public Benefit” are not limited to sole occupancy oruse by the public and includes opening up otherwise

landlocked private properties for use and development(and taxation). Pratt Supra.


§ 300. Private road

An application for a private road shall be made inwriting to the town superintendent of the town inwhich it is to be located, specifying its width and

location, courses and distances, and the names of theowners and occupants of the land through which it is

proposed to be laid out.


§ 301. Jury to determine necessity and assess damages

The town superintendent to whom the applicationshall be made shall appoint as early a day as theconvenience of the parties interested will allow, when,

at a place designated in the town, a jury will be selectedfor the purpose of determining upon the necessity of

such road, and to assess the damages by reason of theopening thereof.

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§ 302. Copy application and notice delivered to

applicant

Such town superintendent shall deliver to the applicanta copy of the application, to which shall be added a

notice of the time and place appointed for theselection of the jury, addressed to the owners and

occupants of the land.


§ 303. Copy and notice to be served

The applicant on receiving the copy and notice shall, onthe same day, or the next day thereafter, excluding Sundaysand holidays, cause such copy and notice to be served uponthe persons to whom it is addressed, by delivering to each ofthem who reside in the same town a copy thereof, or in caseof his absence, by leaving the same at his residence andupon such as reside elsewhere, by depositing in thepostoffice a copy thereof to each, properly enclosed in anenvelope, addressed to them respectively at their postofficeaddress, and paying the postage thereon, or, in case of infantowners, by like service upon their parent or guardian.


To LANDOWNER:

Please take notice that on the -- day of ----, 2015, in the Townof ----, County of ---- at ----, a jury will be selected pursuant to §304 of the Highway Law , for the purpose of determiningupon the necessity of the road asked for in the applicationof –APPLICANT #1--- and –APPLICANT #2---, dated ----,2015-, a true copy of which is annexed, and to assess thedamages by reason of opening said road; and suchdetermination and assessment shall be made on a day andhour and at a place to which such proceeding shall be dulyadjourned by the undersigned.

Dated –MONTH ---, 2015-.

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§304 List of Jurors and Drawingof Jurors

…. the town superintendent shall, in the presence of a justice of thepeaceof such town, to be designated by him and who shall be present at suchtime, openly draw thirty-six ballots from a box or other receptaclecontaining the names of the persons who are returned as jurors of thetown to the courts of record of the county, upon thelast list thereof,ascertified by the countyclerk, as jurors to attend and determineupon thenecessity of such road and to assess the damages by reasonof the openingthereof…

“The ballots shall be of the same description as those prescribed to beused by justices of the peace, for the purpose of procuring a jury to try anaction in justices' courts.”

“If a person whose name is thus drawn is not a resident freeholder of thetown, the townsuperintendent shall set aside such juror…”


§ 305. Delivery, execution and return of venire

The justice of the peace attending upon such drawingof jurors shall thereupon issue a venire, and the sameshall be delivered and executed in the same manner as

a venire for jurors drawn in a justice's court, asprovided in, and under the same penalty as provided

in, the provisions of law governing the delivery,execution and return of a venire issued by a justice ofthe peace for jurors drawn for service in the justices'

courts.


§ 306. Jury to determine and assess damages; fees of

justice of peace and constable

…the town superintendent, and the justice of the peaceso designated by him, shall attend, and a jury of twelve

shall then be openly drawn and chosen by the justice ofthe peace…

…each party may peremptorily challenge not more than

six of the persons drawn as such jurors…

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§ 306. Jury to determine and assess damages; fees ofjustice of peace and constable, cont’

… The persons so selected, as herein provided, shallconstitute the jury and shall be sworn by the justice ofthe peace well and truly to

determine as to the necessity of the road, and

to assess the damages by reason of the opening thereof.

The duties of the justice of the peace in connectionwith such proceeding shall end after the jury issworn….


§ 307. Their verdict

The jury shall view the premises, hear the allegations ofthe parties, and such witnesses as they may produce,and if they shall determine

that the proposed road is necessary,

they shall assess the damages to the person or personsthrough whose land it is to pass,

and deliver their verdict in writing to the townsuperintendent.


“The Legislature evidently considered this method of

laying out private roads the work of laymen rather thanlawyers.” In Re Bell, 131 Misc. 734 (Sup. Ct. St.

Lawrence Co., 1928)

“[A]n ancient and archaic provision of the Highway

Law which is unique and rarely utilized.” Preserve Assoc.v. Nature Conservancy, Inc. 934 N.Y.S.2d 678 (Sup. Ct.Franklin Co., 2011). November 28, 2011

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Eminent Domain: Private Rd

§ 309. Papers to be recorded in the town clerk's office

The town superintendent shall annex to such verdictthe application, and their certificate that the road islaid out, and the same shall be filed and recorded in

the town clerk's office.


Certificate of Town Superintendent of Highways on Laying out Private Road

The undersigned hereby certifies that a private road is hereby laid out inaccordance with the application therefor of ---- and ----, dated ----, 2015, and thewritten verdict of a Jury reached and rendered in accordance with §304-307,inclusive,of the Highway Law which application and verdict are annexedhereto. The location, width, courses and distancesof such road, pursuant tosuch application and verdict, and a survey thereof which the undersigned hascaused to be made, are as follows: ---.

In witness whereof I have hereunto subscribed my name this -- day of ----, 2015.NAME as Town Superintendent of Highways,

Town of --,

County of ----, N.Y.


§ 310. Damages to be paid before opening the road

The damages assessed by the jury shall be paid by theparty for whose benefit the road is laid out, before theroad is opened or used; but if the jury shall certify that

the necessity of such private road was occasioned bythe alteration or discontinuance of a public highway,

such damages shall be paid by the town and refundedto the applicant.

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§ 311. Fees of officers

Every juror serving on the jury, in proceedings for aprivate road, shall be entitled to receive for his servicesone dollar and fifty cents to be paid by the applicant.


§ 312. Motion to confirm, vacate or modify

Within thirty days after the decision of the jury shallhave been filed in the town clerk's office, the owner,occupant or applicant may apply to the county court

wherein such private road is situtated, for an orderconfirming, vacating or modifying their decision; and

such court may confirm, vacate or modify suchdecision as it shall deem just and legal.


§ 312. Motion to confirm, vacate or modify cont’

If the decision is vacated, the court may order anotherhearing of the matter before another jury, and remitthe proceedings to the town superintendent of the

same town for that purpose. If no such motion ismade, the decision of the jury shall be deemed final…

If the final decision shall be adverse to the applicant,

no other application for the same road shall be madewithin one year.

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§ 313. Costs of new hearing

If upon a new hearing, the damages assessed areincreased, the applicant shall pay the costs andexpenses thereof, otherwise the owner shall pay the

same.


§ 314. For what purpose private road may be used

Every such private road, when so laid out, shall be forthe use of such applicant, his heirs and assigns; but notto be converted to any other use or purpose than that

of a road; nor shall the occupant or owner of the landthrough which said road shall be laid out be permitted

to use the same as a road, unless he shall have signifiedsuch intention to the jury who assessed the damagesfor laying out such road, and before such damages were

assessed.

Eminent Domain:Improvement Corporations

§ 315-a. Improvement corporations; right ofacquisition

Any corporation formed for the purpose of developingor improving real property, which lays out for publicuse roads, streets, avenues or highways, upon orthrough its lands, if unable to agree with the owners ofany real property required for the purpose ofextending, continuing or connecting such roads,streets, avenues or highways, for the purchase thereof,may acquire title thereto by acquisition in the mannerprescribed by the eminent domain procedure law;…

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§ 315-a. Improvement corporations; right of acquisition

….provided such corporation has the consents of the ownersof not less than one-half of all of the land which adjoins orabuts upon, or which will adjoin or abut upon, such roads,streets, avenues or highways, or their extensions,continuations or connections, when completed;

and such corporation may lay out and establish such roads,streets, avenues or highways, and the extensions,continuations or connections thereof…


§ 315-a. Improvement corporations; right of

acquisition

…. All lands so taken by acquisition shall be deemed tobe acquired for a public use.

DEDICATIONVillage of Seneca Falls Map

1856 by J.H. French

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Dedication

A Highway created by Dedication, whether by statute

(laying out a highway §171 High Law) or at commonlaw requires:

1. Offer of Dedication

2. Acceptance of Dedication

Dedication: Intention & Offer

Intention: The intentions of a landowner dedicating

land to the public “should be deliberate, unequivocaland decisive, manifesting a positive and unmistakable

intention to permanently abandon his property to thespecific public use.”

In Re New York (117th Street), 239 N.Y. 119 (1924)

quoting Haldane v. Trustees of Village of Cold Spring, 21N. Y. 474, 477.


The acts and declarations of an intention to dedicatedo not need to be in writing, or contained in a deed,they can be oral declarations or physical acts thatdemonstrate the requisite intent. Auslander v. Strain, 81NYS 425 (1948).

Intention to dedicate can be evidenced by “throwing itopen” to the public for use as a highway. Porter v.International Bridge Co., 200 NY 234 (1910) citing ( Cityof Cohoes v. D. & H. C. Co., 134 N. Y. 397.)

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In Romanoff v.Village of Scarsdale, 50 A.D.3d 763(2dDep’t 2008), the donor of the land, a developerpresented the Village Board with a document

“…entitled "Dedication," which stated that the developer

"dedicat[ed] . . . all its right, title, and interest in and tothat certain piece or parcel of land situate, lying, and

being in the Village of Scarsdale, in the said County,including within the boundaries of all roads, as laidout and shown on a certain map and plan thereof,

entitled Subdivision Map, Scarsdale Ridge, Section No.4."


The Second Dept. Appellate Division held that:

“This statement constitutes an unequivocal offer onthe part of the developer to completely relinquish hisinterest in the land laid out as streets on the

subdivision map.”

Was deemed a transfer of the fee


However deed reservations such as:

‘Subject, nevertheless, to the rights of the public and adjoiningowners in the roads, streets and avenues included within thepremises.’

Does not constitute the dedication of any street to thepublic. Carmen v. Hewitt, 105 NYS 2d 239 mod as to othermatters 280 AD 866 (2d Dep’t. 1952), aff’d 305 NY 718(1953)

but merely acknowledges that the public may have aninterest based on use. Bond v. Turner, 78 A.D.3d 1490 (4th

Dep’t 2010) Dissent

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Intent to dedicate land for a public highway can be

inferred from the land owner’s long acquiescence andfailure to protest the public’s use his land as a public

highway sufficient to establish an offer to dedicate.Heyert v. Orange and Rockland Utilities Inc., 17 NY 2d352 (1966)


And intent to dedicate can be inferred from the Order

laying out the highway pursuant to statute when theOrder itself indicates the offer was made:

"upon the application and with the consent of one

through whose land the alterations hereinafterdescribed is to be made" is evidence … of dedication by

the then owner of the area in question.” Smith v. SandyCreek, 12 Misc. 2d 916 (Sup. Ct. Oswego Co., 1958)


In contrast to a common law dedication, a writing or deedmay be required by certain statutes:

Village Laws 4-412, 6-610, 6-612,

Town Law 276, 277, 278 (subdivisions & maps in nextsection)

General City Law 32,33,34,

General Municipal Law 238 and

Highway Law 171.

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Dedication: Acceptance

Acceptance of a dedication by the public authorities

can by:

1. Express formal action (resolution or other acts) or

2. implied by repairs made and ordered or knowingly

paid by the authority that has the legal power to adoptthe street or highway or

3. from long user by the public. Flack v. Village of Green

Island, 122 N.Y. 107 (1890)

Dedication: Acceptance

Acceptance of an offer to dedicate land can be made manyyears after the offer was made.

For Example: in Sauchelli v. Town of Hempstead, 143 N.Y.S.2d889 (Sup Ct. Nassau Co. 1954) the offer of dedication wasaccepted by the Town 23 years after the offer was made

Similarly in Bridges v. Wycoff, 67 N.Y. 130 (1876). the TownHighway Superintendent accepted the dedication made via afiled map over the objections of the landowners whose landswere burdened by the street 35 years after the offer wasmade

Dedication: Paper Streets

In order to sell lots off a subdivided property, the

subdivision map must be filed in the County Clerk’sOffice. RPL 334. This has long been the rule.

Filing the map does not in and of itself constitute an

offer of dedication of the roadways shown on that mapfor highway purposes. The grantor must make a clear

and unmistakable offer to dedicate the roadways shownon the subdivision map for public use, usually in thelanguage of the first deeds out or on the map itself.

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Today the Village, City and Town Law provide that a

subdivision map cannot be filed or recorded unless ithas been approved by a planning board.

The owner may add a notation to the map that the

streets shown are or are not being dedicated to thepublic.

If some or all of the streets are being dedicated to the

public, it shall be done formally by a separatedocument.


HOWEVER Town Law 279(4) further provides that

unless a notation to the contrary is contained on thesubdivision map all roadways shown on the map are

deemed to be dedicated to the public.

The offer of dedication will continue until eitheracceptance by the Town or revocation of by the land

owner(s).


Until dedicated, the streets are presumed to be privateroads.

The streets shown are private easements that cannot beextinguished except by abandonment, conveyance,condemnation or adverse possession.

Nonusedoesnot extinguish a private paper street easement.

“paper" easements may not be extinguished by adversepossession absent a demand by the owner that the easementbeopened and a refusal by the party in adverse possession”Spiegel v. Ferraro, 73 NY2d622 (1989)

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Dedication: Withdrawal of Offer

Withdrawal of an offer can occur any time before anacceptance. Sauchelli v. Town of Hempstead, 143 N.Y.S.2d889 (Sup Ct. Nassau Co. 1954)

Withdrawal is accomplished by the original donor orthe grantees of the donor. In Bridges v. Wycoff theCourt of Appeals stated that:

“The original proprietors and all the other partiesinterested might have united and revoked thededication before acceptance by the public authorities,but this they did not do.”

Dedication: Rejection of Offer

Formally or by actsof the municipality

In Goulding v. Town of Tonawanda, 282 A.D. 321 (4th Dep’t 1953)theTown installed a curb acrosswhat would have been theopening to a street in the subdivision indicating by its acts that itrejected the dedication of this street in the subdivision as a publichighway.

Notwithstanding the fact that other lot owners would have aprivate right over the road that was shown on the mappaperstreet rule

Prescription or UserHighwaysDefinition of Prescription:A method to obtain rights to another’s land byadverseuse.

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Prescription or User Highways

To acquire an easement by prescription the use must be:

open,

notorious,

continuous,

uninterrupted,

undisputed and

adverse to the title holder of the land for the statutoryperiod of time.

Prescription or User Highway

The Statutory Period is 10years

Between 1959 and 1963 itwas 15 years

Prior to 1959 it was 20years.


§ 189. Highways by use

All lands which shall have been used by the public as ahighway for the period of ten years or more, shall be ahighway, with the same force and effect as if it had

been duly laid out and recorded as a highway…..

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Village Law §6-626-Streets by prescription

All lands within the village which have been used bythe public as a street for ten years or morecontinuously, shall be a street with the same force and

effect as if it had been duly laid out and recorded assuch.

No analogous statute in the City Law. See City of NY v.Gounden, 2013 N.Y. Misc. LEXIS 689 (Queens Co. Jan.22, 2013)

Prescription: Public Use

“used by the public as a highway” Highway Law 189

“used by the public as a street” Village Law 6-626

What does that mean?

Because we know “naked use” by the public does not

convert the roadway into a public highway. See Pirmanv. Confer Supra.


A public highway can be created “By prescription, or

where land is used by the public for a highway for 20years, with the knowledge, but without the consent, of

the owner. The presumption of a grant of the right ofway springs from the mere lapse of said period of timein connection with the adverse user by the public.”

Cohoes v. D&H Canal Co. 134 N.Y. 397 (1892)

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New York Courts as late as 1913 recognized two

methods to acquire a public highway by use:

1) Public use that was hostile and without the consent

of the landowner and

2) Public use coupled with public maintenance.


The trend since 1913 is that there must be both Public

Use and Public Maintenance for the requisiteprescriptive period.

The only recent case espousing the first method isDwyer v. Town of Rodman, 23 A.D.3d 989 (4th Dep’t2005).


Courts interpreting the Village Law have applied the

same test to find a Village Street created byprescription: public use coupled with public

maintenance

Marchand v. NYS DEC, 19 NY3d 616 (2012)

Impastato v. Village of Catskill, 43 NY2d 888, (1978)

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Public MaintenanceRecent ditching and brush cuttingShun Pike Road, Schoharie

Prescription: PublicMaintenance

“The words ‘used by the public as a highway’ mean that

there must be an assumption of control, ofmaintenance, of repair in a continuing way, a taking

charge by the public authorities, a treating of the roadas a public highway like other town highways generallyso that the town becomes responsible for its condition”

Goldrich v. Franklin Gardens Corp 115 NYS 2d 72 (Sup.Ct. Nassau Co, 1952). Rev’d on other grounds, 282

A.D. 698 (2d Dep’t 1953) citing, People v. Sutherland,252 N.Y. 86, at page 91.


But the mere fact that a portion of the public travel

over a road for twenty years cannot make it a highway;and the burden of making highways and sustaining

bridges cannot be imposed upon the public in thatway. There must be more. The user must be like that ofhighways generally. The road must not only be traveled

upon, but it must be kept in repair or taken in chargeand adopted by the public authorities. We think all

this is implied in the words 'used as public highways.'Speir v. Town of New Utrecht, 121 NY 420(1890).

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Merely listing a road on a Town Highway Inventory, Desotellev. Town of Schuyler Falls, 301 A.D.2d 1003 [3d Dep’t. 2003]

and it’s alleged presence on a single historical map, Hillelsonv. Grover, 105 A.D.2d 484 [3d Dep’t. 1984]

does not rise to the level of dominion and control, takingcharge of and maintaining the road like other public roadsnecessary to establish a public highway by use. See Goldrichv. Franklin Gardens Corp., 138 N.Y.S.2d 731, [1955] aff’d 2A.D.2d 752, aff’d 2 N.Y.2d 906 [1955]


“…the Town regularly plowed the road in the winter,

and ditched and graded it in the summer, from at least1977 through 1987…..this activity was clearly more

than the occasional plowing or road work which hasbeen found to be insufficient to show that the Townhas maintained or assumed charge of the road

involved.”

LaSalle Co. v. Town of Hillsdale, 199 A.D.2d 685 (3dDep’t. 1993)


The extent of use and maintenance by the public is a

question of fact

Must be determined on a case by case basis

Typically deemed the method of creation when the

highway cannot be shown to have been created bystatute or dedication, but there is long standing publicuse and maintenance

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The End:Laura E. Ayers, [email protected]

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