Fish vs. The Mayor, &c. of Rochester, 6 Paige Ch. 268

The Chancellor. It appears from the complainant’s bill that what is now Munro street, in the city of Rochester, was long since laid out as a public highway or road, under the authority of

an act of the legislature of this state.It must, therefore, be presumed that the then owner of the premises dedicated the land to the use of the public, as a highway or street; or that he received compensation therefor in conformity to the laws then in force on that subject.

The vice chancellor is therefore correct in supposing that the public have not only acquired the right of passage, but also the right or privilege of levelling, grading, or otherwise improving the street in such manner as shall render it most convenient and beneficial to the public for the purposes for which it was thus dedicated or taken, and in reference to the present and future situation of that part of the country, as well as its situation when the road was laid out.

And as the present state of improvements at that place have thrown it into the chartered limits of a city, the public have a right to improve it in such a manner as to render it a convenient street or passage for the dense population of a city, and in reference to city business, without paying any further compensation to the owner of the soil over which such street passes, or to those who have succeeded to his rights.

By their charter, the common council of the city of Rochester are made commissioners of highways for the city; and it is their duty to regulate and give directions for repairing, preserving and improving the highways, streets, alleys, &c. and they are empowered to grade and improve the same, in the manner provided for in the ordinance in this case. (Laws of 1834, p. 313, tit. 7, § 1 and 10.) The legislature having given to the corporation the discretionary power and authority of deciding when and in what manner the streets and highways shall be regulated, graded and improved, this court is not legally authorized to interfere with or control that discretion, unless it is exercised in bad faith. so as to amount to a fraud , upon the rights' or interests of the complainant.

As no sütíh allegation is made in this bill, his remedy, if he has any, is in a different tribunal. So far as relates to the injury, if any, in removing the earth or gravel which is necessarily taken out in reducing the grade of the street, and using it in repairing dr improving other streets of the city, it cannot form a proper subject of relief in this court even if the complainant is right in supposing that such earth or gravel belongs to him.

It is not alleged in the bill that he either offered or was willing" to make the necessary excavation himself, and that the" common council refused to permit him to have the sand and gravel so removed ; and they certainly were not bound to remove it for him and to deposit it in such place as he should direct.- I believe it is the common practice of public officers having the care of public roads, to take the’ materials which are removed from one part of the highway, under their direction, in improving the road at that point, and deposit them wherever they may be wanted for the repair or improvement of the highway in other places ; even be*yond the boundaries of the lands opposite to where the materials were taken.- The only restriction upon this power of which I am aware, is that contained in the 126th section-of the title of the revised statutes relative to highways and bridges, (1 R.

S. 525,) which gives to the owner or occupant of land over which a highway is laid out, the use of the trees thereon, except such as are requisite to make or repair the highways or bridges on the same land. This legislative restriction of the right to use trees, or limiting it to repairs of the road within the same lands, appears to be founded upon the supposition that without such restriction they might be used to repair or improve other parts of the highway; and as the restriction is confined to trees, other materials may be used beyond the bounds of the land from which they are taken.

Trees, when cut down, may be left without much inconvenience by the side of the' highway, until the owner of the land through which the road runs has a reasonable time to remove them. But when it is necessary to excavate earth or gravel, it must be removed entirely, or the work cannot be completed, and must be done anew. And it cannot be deposited upon lands adjacent to the highway without the consent of the owners of such lands When in a state of removal, therefore, it does not appear to be susceptible of any distinct ownership, ^except in those under whose authority or by whom such removal is made.

This does not appear to be a case in which, by the city charter, an appraisal of damages is necessary, before the common council can proceed to grade and improve a road or street already laid out and paid for, or otherwise dedicated to the public. The decision of the vice chancellor, therefore, appears to have been right in this case, in refusing the injunction as asked for by the complainant, and the order appealed from must be affirmed, with costs.