Opinion
May, 1904.
A.R. Gibbs, for the appellant.
Albert F. Gladding, for the respondent.
Section 99 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1899, chap. 622) provides that "every highway that shall not have been travelled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be deemed abandoned as a right of way. The commissioners of highways shall file, and cause to be recorded in the town clerk's office of the town, written description, signed by them, of each highway and public right of way so abandoned, and the same shall thereupon be discontinued."
The court has found as a fact, upon ample evidence, that during all of the six years preceding the filing of the certificate by the commissioner the roadway in question had been traveled and used as a highway by the public. That stands as a fact established in the case. That being so the question is presented, whether the commissioner had any jurisdiction or power to file and record the certificate or paper which he did.
It is claimed upon his behalf that his act in so filing and recording it was a judicial act involving discretion which cannot be reviewed; that, therefore, an application for a mandamus was improper and that the only way to review was by writ of certiorari.
The language of section 99 ( supra) under which he acted carries a complete negative to this position. Under the express terms of the law, when a highway has not been traveled or used as such for six years it ceases to be a highway. It ceases to be a highway by virtue of the law and not because of any act which the commissioner may perform under the law. It is apparent that he had no judicial function to perform under the law and that there was no discretion resting in him thereunder. Nor can it be claimed, with any reason, that when the fact does not exist which gives him the right to file and record a description of an abandoned highway under the statute, and he nevertheless assumes and asserts the fact of non-user and files and records a description, a highway which has not been abandoned, and has in fact been traveled and used as a highway during each of the prior six years, shall by virtue of his act alone cease to be a highway and be discontinued.
The fact which forms the only foundation or justification for the defendant's filing and recording the description which he did, is, under the finding of the court, wanting in this case, and he cannot shield himself behind a paper which, we must hold upon this record, he had no power under the law to make.
His duty under the law is to have the care and superintendence of the highways in his town, to cause the same to be kept in repair to divide the town into highway districts and to appoint overseers of highways for the several districts. (Highway Law, § 4, as amd.) His act being void for want of jurisdiction or power, the paper which he filed and recorded furnishes no defense for his failure to discharge his duty under the law with reference to the highway in question, and for failure to discharge such duty mandamus is the appropriate remedy.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.