Opinion
June 18, 1908.
Abner Robertson, for the appellant.
Erskine C. Rogers and Frederick Fraser for the respondent.
For many years prior to 1902 there was on the side of a highway a pipe which conducted water from a spring to a hotel property now owned by defendant. In the latter year the owner of the hotel without plaintiff's knowledge or consent dug a trench on the opposite side of the highway and in front of premises owned by plaintiff, the title to which premises extended to the center of the highway, and transferred to such trench the pipe line connecting said spring and hotel. The defendant subsequently purchased the hotel property and against plaintiff's protest opened the trench for the purpose of repairing said pipe. To redress such grievance this action was instituted.
The learned county judge dismissed the complaint because the commissioners of highways and the supervisor of the town had granted their permission to lay and maintain such water pipe pursuant to section 14 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1897, chap. 204).
Under that statutory provision the town officers represent the public and their permission as therein provided suffices so far as the public ownership of an easement over the premises in question is concerned. Defendant and his predecessor in title could not interfere with that public easement without such permission. But after acquiring such permission they still had to reckon with plaintiff's ownership of the fee in the highway. The permission of the town officers in no way operated to justify the acts complained of as against plaintiff's individual rights.
The construction and maintenance of said pipe line constitutes in no sense a public use of the highway but a private use thereof by the defendant for his individual and personal benefit. The water was used solely in connection with his hotel and if he permitted the public to use the same such use nevertheless was incidental and subordinate to his ownership and did not constitute a public use in the ordinary or true sense. On the evidence presented a verdict should have been directed in favor of plaintiff for such damages as the jury might have found that he had sustained.
The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.