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Attorney(S)

Thomas H. Dowd and Charles E. Congdon, for the relator. G.W. Cole, for the respondents.

Judges

ROBSON, J.:

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Smart Summary

Case Summary: The People ex rel. Clarence J. Bushnell v. Orris Newell and Others (App. Div. 1909)

Factual and Procedural Background

This proceeding was brought by relator Clarence J. Bushnell to procure vacation and annulment of prior proceedings of the town board of Napoli and the town commissioner of highways, which had resulted in an order discontinuing a town highway as "useless."

The respondents asserted that the discontinuance was taken pursuant to the 1904 amendment to section 80 of the New York Highway Law (Laws of 1890, chap. 568, as last amended by Laws of 1904, chap. 387), which, as amended, authorized town commissioners of highways, upon written application and with written consent of the town board and upon filing releases from owners of affected lands (subject to stated monetary limits), to make an order discontinuing a highway which has become useless, and provided that such an order "shall be final."

The record shows: an application to discontinue the highway was made to the commissioner; the town board gave written consent; releases of damages were procured and filed; the commissioner made an order discontinuing the highway; and the application, consent, releases and order were filed in and recorded by the town clerk. Both the town board and the commissioner considered and determined that the highway was useless prior to giving consent and making the order.

Relator challenged the order on the ground that the commissioner had not procured and filed releases of damages from all owners of lands affected by the discontinuance, asserting that he (relator) himself owned lands affected and had not given a release, and that other similarly situated owners had not given releases.

The Appellate Division reviewed the record by writ of certiorari and, after analysis, confirmed the order of the highway commissioner discontinuing the highway and dismissed the writ with fifty dollars costs and disbursements. The opinion records that all justices concurred.

Legal Issues Presented

Whether the 1904 amendment to section 80 of the Highway Law vested town commissioners of highways with authority, together with the town board's written consent and filed releases, to discontinue a highway as "useless."
Whether, under the amended statute and the record, the commissioner acted within his authority in making the order discontinuing the highway (given that the statute declares such orders to be final).
Whether the relator was an owner of lands "affected" by the discontinuance and thus entitled to damages—and, relatedly, whether the absence of a release from the relator (and allegedly from other owners) invalidated the commissioner's order.

Arguments of the Parties

Relator's Arguments

The commissioner lacked authority to make the order because he failed to procure and file releases of damages from all owners of lands affected by the discontinuance; specifically, relator claimed he was an owner of affected land and had not given a release.
Relator's counsel also contended that the discontinuance involved a factual determination (whether the highway had become useless), implying an argument that the factual determination could be reviewed.

Respondents' Arguments

Respondents asserted that the discontinuance was taken pursuant to section 80 as amended in 1904 and that the statutory prerequisites were satisfied: written application, written consent of the town board, and releases of damages (within the statutory monetary limits) were procured, filed and recorded.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People ex rel. Schuylerville U.H.R.R. Co. v. Betts, 55 N.Y. 600	Supports the proposition that, when the statute declares the order final, a writ of certiorari brings up only the record so the court may determine whether the commissioner acted within his authority.	The court relied on this authority to limit its review to whether the commissioner acted within the statutory authority when making the discontinuance order.
People ex rel. Seymour v. Canal Board, 7 Lans. 220, 222	Same principle: certiorari review is confined to determining whether the official acted within his authority where the statute makes the action final.	Used to support the court's position that it could not review the factual determination of uselessness but only whether the commissioner acted within his statutory power.
People ex rel. Foote v. Dewey, 1 Hun, 529	Same limiting principle regarding certiorari and final statutory orders.	Applied to justify restricting the scope of review to the commissioner's authority under the statute.
People ex rel. Scrafford v. Stedman, 57 Hun, 280, 284	Authority indicating that owners of lands through or adjacent to a highway are the parties entitled to damages when a highway is laid out or discontinued.	Applied by the court to conclude that only such owners are entitled to damages and thus only their releases are required by the statute.
People ex rel. Lawrence v. Schell, 5 Lans. 353	Similar principle: entitlement to damages is limited to owners of lands through or adjacent to the highway.	Relied upon to determine that relator's land was not so affected and therefore relator was not entitled to damages or to maintain the proceeding.
People ex rel. Cronk v. Weld, 6 N.Y. St. Repr. 173	Provides analogous precedent on who is entitled to damages for laying out or discontinuing a highway.	Used to support the court's interpretation that only owners whose lands are through or adjacent to the discontinued highway are entitled to damages, and whose releases the statute requires.

Court's Reasoning and Analysis

The court's analysis proceeded in discrete steps, closely tied to the statutory text and the record:

Statutory construction: The 1904 amendment to section 80 of the Highway Law added express authority for town commissioners, upon written application and with the written consent of the town board and upon filing releases of damages from affected owners (within monetary limits), to discontinue a highway "which has become useless," and declared that an order of the commissioners "shall be final." The court concluded that the amendment "clothes the commissioners of highways of a town with authority to determine on due application the question whether or not a highway is useless," provided the town board also determines and evidences its consent in writing.
Examination of the record: The court noted that the procedural prerequisites required by the statute were followed: application to the commissioner, written consent of the town board, procurement and filing of releases of damages, the commissioner's order discontinuing the highway, and recording of the documents in the town clerk's office. Both the town board and the commissioner had considered and determined the highway's uselessness.
Scope of review: Because the statute declared the commissioner's order "final," the court held that certiorari could bring up only the record to determine whether the commissioner acted within his authority. The court stated it was "precluded from reviewing in this proceeding" the factual determination that the highway was useless.
Meaning of "lands affected" and releases: The court interpreted "lands affected by the discontinuance" to mean those owners entitled to damages for such discontinuance. Citing prior decisions, the court explained that owners of lands through or adjacent to the discontinued highway are the parties entitled to damages, and therefore only releases from such owners are required by the statute.
Application to relator's claim: The court found as a matter of record that the line of the south end of the discontinued highway is part of the north line of a highway adjacent to relator's premises, but no part of the discontinued highway adjoined relator's premises. Consequently, relator was not the owner of lands "affected" so as to entitle him to damages for the discontinuance, and therefore there was no statutory requirement that he provide a release. For that reason, the relator lacked standing to maintain the proceeding to review the town authorities' action.
Harm assessment: The court observed that any inconvenience to relator from the discontinuance was common to the public generally (or at most a matter of degree of inconvenience), and not a special injury warranting relief.

Holding and Implications

Holding: The court's dispositive ruling was that the order of the highway commissioner discontinuing the highway is confirmed and that the writ of certiorari is dismissed with fifty dollars costs and disbursements.

Implications:

The direct effect is that the commissioner's order discontinuing the highway remains in force and relator's challenge fails; relator is not entitled to damages and may not maintain the proceeding because his land was not "affected" within the meaning applied by the court.
The court limited its review to the narrow question of statutory authority and compliance with procedural prerequisites, refusing to reexamine the commissioners' factual determination that the highway had become useless because the statute made the order final.
The opinion does not discuss broader legal consequences or purport to establish new doctrinal rules beyond the interpretation and application of section 80 as amended and existing authorities on who is entitled to damages.

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THE PEOPLE OF THE STATE OF NEW YORK ex rel. CLARENCE J. BUSHNELL, Relator, v. ORRIS NEWELL and Others, Indi

ROBSON, J.:

The purpose of this proceeding is to procure vacation and annulment of the proceedings of a former town board of the town of Napoli and the then commissioner of highways of said town in and by which a highway of said town was by order of the commissioner discontinued as useless. These proceedings for discontinuance of the highway and the order made therein were taken and made, as it is claimed by respondents, pursuant to the provisions of section 80 of the Highway Law (Laws of 1890, chap. 568, as last amd. by Laws of 1904, chap. 387), which was in force at the time said proceedings were begun. This section as amended is, so far as material to our present inquiry, as follows: "Such commissioners of highways may also, upon written application and with the written consent of the town board, make an order laying out or altering a highway, or discontinuing a highway which has become useless since it was laid out, in their town, upon filing and recording in the town clerk's office, with such application, consent and order, a release from all damages from the owners of the lands taken or affected thereby, when the consideration for such release, as agreed upon between such commissioners and owners, shall not, in any one case, from any one claimant, exceed one hundred dollars, and from all claimants, five hundred dollars. An order of the commissioners as herein provided shall be final." The addition of the words italicised in the above quotation constituted the amendment of the section in 1904 above referred to. Prior to that amendment there does not seem to have been any statutory provision authorizing the discontinuance of a highway as useless by order of the commissioners of highways. We are of the opinion that this amendment clothes the commissioners of highways of a town with authority to determine on due application the question whether or not a highway is useless, provided the town board shall have also so determined, and evidenced such determination by its written consent to the discontinuance of such highway.

The record shows that an application was made to the commissioner of highways to discontinue the highway in question; that the town board gave its written consent to such discontinuance; that releases of damages were procured; that the commissioner made an order discontinuing the highway, and filed the application, consent, releases and order in the town clerk's office, and that the same were thereafter recorded therein. It also appears that the uselessness of said highway was considered and determined both by the town board before giving its written consent and by the commissioner before making the order. It is doubtless true, as relator's counsel suggests, that a proceeding to discontinue a highway under the amended section above quoted, "involves the determination of a question of fact, to wit, whether the highway has become useless." We are, however, precluded from reviewing in this proceeding such determination of fact. The order of the commissioner discontinuing a highway, as provided by the act, being also thereby declared to be final, the writ of certiorari brings up the record of the proceedings resulting in the order only for the purpose of enabling this court to determine by examination whether the commissioner acted within his authority in making the order. ( People ex rel. Schuylerville U.H.R.R. Co. v. Betts, 55 N.Y. 600; People ex rel. Seymour v. Canal Board, 7 Lans. 220, 222; People ex rel. Foote v. Dewey, 1 Hun, 529.)

Relator insists that the commissioner was not within the limits of his authority in making the order for the reason that, as is claimed, he failed to procure and file with the order releases of all damages from all the owners of the lands affected by the order since, as he claims, he is himself the owner of lands affected by the discontinuance of the highway and has given no release, and that there are other owners similarly situated, from no one of whom has such release been obtained. Within the meaning of the statute those lands only are affected by the discontinuance of a highway whose owners are entitled to damages for such discontinuance; for it is only from such owners that releases of damages are required by the statute. It appears that releases of damages from all persons owning lands through or adjacent to which the discontinued highway extended were procured and duly filed. Such owners are the only persons who are entitled to an award of damages for discontinuance of a highway as appears from the decisions in kindred cases in which the question of a right to damages for laying out a highway was passed upon. ( People ex rel. Scrafford v. Stedman, 57 Hun, 280, 284; People ex rel. Lawrence v. Schell, 5 Lans. 353; People ex rel. Cronk v. Weld, 6 N.Y. St. Repr. 173.) The line of the south end of the discontinued highway is a part of the north line of a highway adjacent to relator's premises, but no part of the discontinued highway adjoins them. He is, therefore, not the owner of lands so affected by the discontinuance of the highway as to entitle him to damages for discontinuing it. For this reason he is not entitled to maintain this proceeding to review the action of the town authorities in discontinuing the highway. ( People ex rel. Lawrence v. Schell, supra.)

The inconvenience he suffers by reason of the discontinuance comes to him in common with the general public whose business or pleasure might lead them to continue to use the highway if it had not been discontinued. His special injury not common to the general public is that he, perhaps, might have more frequent occasion for its use than persons living at a greater distance from it.

The order of the highway commissioner discontinuing the highway should be confirmed and the writ dismissed, with fifty dollars costs.

All concurred.

Order of highway commissioners confirmed and writ of certiorari dismissed, with fifty dollars costs and disbursements.

PEOPLE EX REL. BUSHNELL v. NEWELL