Opinion
Argued May 16, 1874
Decided September term, 1874
Robert Cochran for the appellants.
Odle Close for the respondents.
The statute (1 R.S., 514) provides that "no public or private road shall be laid out through any orchard or garden without the consent of the owner thereof, if such orchard be of the growth of four years or more, or if such garden has been cultivated four years or more before laying out of such road," and the principal question to be determined in this case is whether this provision has been violated.
A garden is a piece of ground appropriated to the cultivation of herbs or plants, fruits and flowers. It is usually a small plot of ground near a dwelling-house, and used in connection therewith. To have the protection of this statute it must have been cultivated for four years. It is not sufficient that the land is inclosed with a garden, but it must be a part of a cultivated garden.
The plot of ground taken in this case is a small triangular piece, the sides of which are twenty-two, twenty-three and thirty-one feet, on the northerly end of a larger piece in which there is a garden. This piece does not seem adapted to garden purposes, and is not in any way essential to the use of the remainder of the large piece as a garden. The taking of this piece for the highway does not interfere in any way with the use of the remainder as a garden. The only question, therefore, is whether this small piece had actually been used as a garden for four years. The freeholders who viewed this road and certified as to its propriety, the commissioners of highways, and the referees appointed upon the appeal, all determined that it was not a garden, and as all these officers had the benefit of a view of the locality, the printed evidence showing the garden should be quite clear before we reverse their determination, particularly after it has been affirmed at General Term of the Supreme Court.
There was no appearance of a garden there in June, 1867, when the road was laid out, and the evidence is far from satisfactory that this plot was ever cultivated as a garden, but particularly so that it had been thus cultivated for four years. The decision of the commissioners and referees was, therefore, in this respect, properly affirmed.
It is also objected that the referees were not properly appointed. The county judge having been counsel, and being thus disqualified, made an order that the appointment of referees be referred to David K. Conklin, one of the justices of the sessions of the county. By section 8 of chapter 455 of the Laws of 1847, it is provided that, in case of any disability of the county judge for any cause, one of the justices of the sessions shall appoint the referees. It is complained here that the county judge had no right to make an order designating a particular justice of sessions to make the appointment. This is true; all the county judge should have done was to make a certificate showing his disability. This order was a mere nullity; it did no harm. Conklin was entirely qualified, and, so far as I can discover, no complaint was made against him. The order did not deprive the other justice of his right to act. The justice who made it was qualified to make it. The appointment was, therefore, valid and regular, and furnishes no ground of error.
The judgment should, therefore, be affirmed, with costs.
All concur.
Judgment affirmed.