Hewitt v. Town of Scipio
| Decision Date | 09 April 1970 |
| Citation | 310 N.Y.S.2d 325,258 N.E.2d 725,26 N.Y.2d 934 |
| Parties | , 258 N.E.2d 725 Jefferson L. HEWITT, Appellant, v. TOWN OF SCIPIO et al., Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Fourth Department, 32 A.D.2d 734, 301 N.Y.S.2d 1021.
Van Fleet & Webster, Moravia (Evan L. Webster, Moravia, of counsel), for plaintiff-appellant.
Shamon, O'Connor & Lewis, Auburn (Robert P. Lewis, Auburn, of counsel), for respondents.
Landowner brought action against town and Superintendent of Highways for permanent injunction to restrain town and Superintendent of Highways from repairing and maintaining alleged highway on land to which landowner claimed title. The alleged highway led to lake.
The Supreme Court, Trial Term, Cayuga County, Roberts, J., rendered a judgment in favor of the landowner, and the town and Superintendent of Highways appealed.
The Appellate Division rendered an order reversing the Trial Term and dismissing the complaint, on ground that highway had not been abandoned.
The landowner appealed to the Court of Appeals, contending that since the town and the Superintendent of Highways alleged the existence of a highway, they assumed burden of proving that highway in fact and in law existed, and that use as a highway contemplates normal travel along lines of an existing road, and fact that pedestrians clambered over, under, or through obstructions during six-year statutory period did not constitute use as a highway so as to prevent an abandonment under Highway Law, Consol.Laws, c. 25, § 205, and that where proper public authority by its silence and failure to take proper action to preserve highway for period of more than six years, highway must be regarded as closed up and abandoned. The town and Superintendent of Highways contended in the Court of Appeals that highway was dedicated, opened, and worked within six years and was the town's only access to the lake, and that the town did not abandon the highway.
Order affirmed, without costs.
All concur.
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