Opinion
November 22, 1967
The State appeals from judgments of the Court of Claims awarding damages for a de facto appropriation of a portion of claimants' lands abutting State Highway Route 13. In 1962, the State reconstructed Route 13 and widened the highway from its previous three-rod width to four rods and took from each of the claimants a strip of land across the front of their properties, having a depth of approximately one-half rod. The State contends that the parcels in question were within the boundaries of the existing highway and that the widening of the road did not result in the taking of any lands of the claimants. The record shows that the title to claimants' lands extended to the center of the highway and that the highway in front of claimants' lands had been maintained at a width of three rods. The State attempts to establish a four-rod width claiming that there was a road over this same location and that since it was in existence prior to 1827, its width must be presumed to be and accepted as four rods as required by the statutes during the time mentioned. Chapter 43 of the Laws of 1797 in effect until 1827 and upon which the State relies, provided in part (par. 19): "That all public highways heretofore laid out * * * and now in use * * * and of which a record shall have been made in the office of the clerk of the town, shall be taken and deemed as public highways * * *: Provided always, That where any roads have been used as public highways for twenty years or more next preceding the passing of this act, the same shall be taken and deemed as public highways, although no record thereof has been made". There was no proof as to whether the claimed highway had been a public or private road or, in fact, even as to how and when it came into existence. Neither was there any proof that the road was originally laid out by the Town Highway Commissioners at any time between 1797 and 1826 when the four-rod minimum was in effect. In addition, we would observe that there was no proof that any prescriptive right to a four-rod road had been established or that the road had existed or had been used as a public highway for the 20-year period mentioned in the above quoted provision of the Laws of 1797. With the state of the record as hereinabove indicated, and it appearing that prior to the present reconstruction of Route 13, the road had been maintained as a three-rod road and not developed or used for any greater width, the State has the burden of proving the road was originally laid out at a greater width ( Rochford v. State of New York, 153 Misc. 239, affd. 245 App. Div. 794; Cobb v. County of Monroe, 24 Misc.2d 581) which burden has not been met; and in this regard the State's attempt to lend evidentiary value to matters contained in its brief but not supported by the record, may not be considered by us ( Bronner v. Walrah, 208 App. Div. 758). The State's reliance on Schillawski v. State of New York ( 9 N.Y.2d 235) is misplaced. There, as in Bovee v. State of New York ( 28 A.D.2d 1165), the "color of statute" rule prevailed which provides that where a road has been laid out under color of statute, the statute and not the user rule determines its width. In both Schillawski and Bovee there was evidence that the questioned highways came into existence under appropriate statutory authority. Here, no such showing has been made, and where a road has obtained its character as a public highway by user alone, its width is determined by the width of the improvement and the extent of its actual use ( Schillawski v. State of New York, supra, p. 238; Porter v. State of New York, 5 Misc.2d 28, 32). Unlike the facts in Curren v. State of New York ( 27 A.D.2d 449) where we adopted the principle that any highway laid out during a time requiring a four-rod width, was presumptively and properly laid out, there is no evidence in the record before us that the road was ever "laid out". In Curren, there was a conveyance of a highway by public authorities. The State has failed to establish the highway's width to be four rods and the easement owned by it is confined to that portion actually used for highway purposes and determined to be three rods. Judgments affirmed, with one bill of costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gabrielli, J.