Opinion
November 17, 1967
Appeal from a judgment of the Court of Claims which awarded damages for the de facto appropriation of a strip of land used to widen State Highway Route 10. In 1960, the State reconstructed Route 10 and widened it to within eight feet of the front of claimants' house. After the reconstruction was completed the pavement of the road was 10 to 12 feet closer to the house and the State's right of way stakes were placed within 18 inches of the house. Respondents, claiming that title to their land extended to the center of the road; that the road had a width of three rods; and that the State had encroached upon their property, were awarded damages by the trial court. It found that the State was entitled to claim whatever right of way had been originally acquired by the Ulster and Delaware Turnpike Company and the right of way so acquired was limited to the extent of actual user. The court rejected the State's contention that a four-rod road had been acquired. We are constrained to disagree. It is true that where a road has obtained its character as a public highway by user its width is determined by the width of the improvement ( People v. Sutherland, 252 N.Y. 86; cf. Beisheim v. People, 26 Misc.2d 684). But, where the road has been laid out under a statute, it is the statute and not the user that determines its width ( Walker v. Caywood, 31 N.Y. 51). The failure of the State to occupy the full width, or to improve the road in the manner provided, does not constitute an abandoment of the easement of the unused portion (Highway Law, § 205; Walker v. Caywood, supra; Beckwith v. Whalen, 65 N.Y. 322; Mangam v. Village of Sing Sing, 26 App. Div. 464, affd. 164 N.Y. 560). There is proof in the record before us to sustain the State's claim that Route 10, in the controverted area, originally came into existence as a part of the Ulster and Delaware Turnpike pursuant to chapter 98 of the Laws of 1802, which provided that the road was to be four rods in width. The State having proved that the Ulster and Delaware Turnpike Company was created to build the road; that the road was laid out and constructed between 1802 and 1810; and that thereafter the State entered and improved a portion of the prescribed width under "color of statute", the statute and not the user is determinative (see Schillawski v. State of New York, 9 N.Y.2d 235). Although the proof here may be insufficient that all the procedural steps were taken in laying out the highway, this does not render the "color of statute" rule inapplicable. Judgment reversed, on the law and the facts, without costs, and claim dismissed. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Aulisi, J. [ 47 Misc.2d 1019.]