« EelmineJätka »
THE.col.vw ing decisions were handed down Tuesday,
Counsel are always able and learned, and opinions are us of Prof. Tiedemann's treatise on the Police Power. always luminous, sound, convincing, exhaustive and The work should find its way into the libraries of all the like. Even law magazines are complimented, as liberal lawyers. witness the following: “The elaborate briefs used on the one side or the other, in the above appeal, and as
FOSTER'S FEDERAL JUDICIARY ACTS. giveu at length in the Western Reporter, will be found The Federal Judiciary Acts 1875 and 1887, with an apendix of incalculable value to the practitioner on this and
containing the equity rules, annotated by Roger Foster of kindred subjects." A statement of tho price of the
the New York Bar. New York. L. K. Strouse & Co., periodical would not have suprised us.
We do not ap
1887. Pp. 109. prove the writer's custom of citing cases by the official
The first fifty-nine pages of this book are devoted to report and also by law magazines in which they have
the judiciary acts and the annotations thereof; the appeared, even when he cites this journal. Still more
latter taking up about three-fourths of the matter; seriously do we object to an extract from "an able
which is a good indication that the editor's labore law journal” in support of “Professor Dwight's"
have exhausted the subject-matter. The book no opinion on a reference. Perhaps however these are
doubt will find ready acceptance among the pracmere matters of taste. One of the best features of the
titioners in the Federal courts, as they cannot afford work is the iudex of one hundred pages, although it
to be without it. The Equity Rules in force, July 1, does start off with: "Abbott, C. J., opinion of,'' eto., 1887, are added, and a good index of twenty-three aud winds up with: “Wren, Sir Christopher, refer
pages completes the work.
COURT OF APPEALS DECISIONS.
HE in the United States and Great Britain. By Nathan Dec. 20, 1887: Newmark of the San Francisco Bar. Bancroft, Whitney Judgment affirmed with costs-James H. Hooker, & Co., San Francisco, 1887. Pp. 617, 696.
respondent, v. City of Rochester, appellant; Solomon This work is as the author states, an "attempt to
M. Schwartz et al. appellant, v. Joseph Hyman, represent," within as small compass, in a suggestive spondent; Susan Petit, respondent, v. Asa Petit, manner,
the sum and substance of the pres. appellant.-Judgment reversed, new trial granted, ent law of the subject stated, as it is determined by costs to abide the event-Arba Briggs, appellant, v. English and American courts." A careful examination John Longford et al. respondents.Motion for reof the book has convinces us that the author has given argument denied with costs-Joseph H. Berry et al. to the profession a volume on this branch of the law respondents, v. Audrew Brown, appellant. —Motion that can take its stand at once by the side of any of to dismiss appeals granted with costs, Daniel Smith, its predecessors. The statements of the text are concise administrator, etc., respondent, v. Robert Meaghan, and we believe accurate, and the arrangement excel- et al., appellants, and Stephen Tabor v. Maria Brundlent, while the references to authorities show an age; Appeal of Joseph V. Dana, v. R. Eldredge, Jr., untiring diligence in research, which can and only will purchaser, respondent.- -Motion to advance cause be appreciated by those who are so fortunate as to denied without costs—The People, respondent, v. Jool possess a copy of the book.
Sherwood, et al. executors, appellants. A very full index puts the contents at the immediate service of those who may have occasion to con
NOTES. sult it. It is safe to say that there is at least one-third more matter in this volume, than in the average
Mr. Charles C. Soule, publisher and dealer in law full size text-book.
books, of Boston, Massachusetts, has issued a “Short
Catalogue of Law Books Illustrated with Portraits of JACOBS' LAW OF DOMICILE.
Legal Authors." The ALBANY LAW JOURNAL enumeA Treatise on the Law of Domicile, National, quasi-national, rates the sitters as “including Messrs. Wood, Schouler, and municipal, based mainly upon the decisions of the
Stimson, Chamberlayne, B. V. Abbott, Ewell, Jones, British and American courts. With illustrations from
Sheldon, Indermaur, Cohen, Henry Austin, and anthe Roman law and the modern continental authorities. By M. W. Jacobs. Boston : Little, Brown & Company,
other- a fine array of intellectual beauty, excepting 1887. Pp. xlv, 600.
that other.” Who “that other," so modestly named The subject of this work is quite novel. It is the
is, must be left to be guessed; but the estimate of the first American treatise upon it in an independent portraits in question cannot be indorsed. The idea, form. The importance of the subject is easily recog
which appears to be entirely new, seems intended to nizable, especially in regard to divorce, voting, pauper satisfy the curiosity expressed in the lives: “Still the settlements, and students. The writer treats of
wonder grew that one small head could carry all he charge and reverter of domicile; of the domicile of in- kuew.” It may therefore be as well to say at once that fants, married women, paupers, non compotes, pris
each author has but one head.-London Law Journal. oners, refugees, invalids, soldiers, sailors, public
You are “away off," brother. Our grammar is unimofficers, ambassadors, consuls, and students; and of peachable. Pray may we not say, “The array of jurorg the criteria of domicile. He has treated the subject
was accepted excepting one?” Besides, why should
not in a large manner, subordinating his authorities to
have more than one head? And how can their proper place as illustrations, thus producing a
you know, with your narrow and insular notions, treatise in its true sense rather than a dry digest, or
that American editors do not habitually have more
than one head ?'' patch-work or crazy-quilt of decisions. The method and treatment are quite admirable in this respect. At Iu speaking of the abolition of the rule in Shelley's the same time the book does not lose its appropriate case in Alabama, Stone, C. J., says in McQueen v. value as a means of reference. We have found much Logan, 80 Ala. 307. Alabama can now share with more consecutive interest in the treatise than in most New York in the touchingly beautiful tribute paid to that come under our notice, not only from the com- it by the learned and classical Kent, 4 Com. *283." parative freshness of the subject but from the excel- Ibis reminds us of Mark Twain's weeping over the lence of the treatment. In these respects it reminds tomb of Adam.
ported to have said that ‘he had a strong opinion that as the defendant, before posting his letter, had
it copied by his clerk, it was a publication, and he ALBANY, DECEMBER 31, 1887.
was supported by the only case he could find upon this point, which was from an American report.'
The name of this case is not given, and we have CURRENT TOPICS.
hitherto failed to discover any American case ex
actly deciding the point. We presume that the seems that the London Lancet does not believe ground of the learned judge's opinion is, either that that hanging is an unnecessarily painful or
the clerk who copies has an opportunity of reading barbarous mode of punishment.
the letter, or that the letter book is open to the pesays:
" At length it is beginning to be recognized in France rusal of all the clerks in the office. We venture to that the brain of a decapitated criminal lives, and suggest that in such a case it might be a question consciousness is maintained for an appreciable time, for a jury whether there had in fact been a publicawhich to the victim may seem an age, after death
tion to a third person. There may possibly be in an opinion we strongly expressed many years ago.
existence such a phenomenon as a clerk who reads This ghastly fact, as we have no doubt it is, being all the letters he copies, or devotes his leisure time perceived, it is beginning to be felt that executions
to a diligent perusal of the letter book of his em. cannot any longer be carried out by the guillotine. ployers; we have not yet come across him, and we Prussic acid is now proposed. If instantaneous gravely doubt whether his little peculiarities would death be desired, this is clearly inadmissible. The tend to a lengthened continuance of his employperiod taken to terminate life by poison of any kind ment.” The case referred to is probably Kiene v.
The court said: “ Defendant must needs vary greatly with the individual. In Rut, 1 Iowa, 482. not a small proportion of instances we fancy death furnished a copy of the libellous matter for him to by prussic acid would be considerably protracted, transcribe.” Then citing Baldwin v. Elphinstone, 2 and although long dying is not so horrible as living BI, 1037, which held that an allegation of “causing after death, so to say, yet it is strongly opposed to
to be printed ” in a newspaper was equivalent to an the interests of humanity to protract the agony of a allegation of publishing, because a third person was fellow creature dying by the hand of justice. Elec- called as agent to whom the libel must have been tricity is another agent suggested. We doubt the communicated, they said: “In the case before us, possibility of applying this agent so as to destroy Wildput being procured to copy the libellous matlife instantly. We confess that, looking at the ter, was clearly an agent to whom the libellous matmatter all round, we incline to think that hanging,
ter was communicated.” We should suppose that when properly performed, destroys consciousness much would depend on whether the copy was made more rapidly, and. prevents its return more effectu- | by pen or by letter-press. In the latter case it ally than any other mode of death which justice might be a question of fact whether the clerk read can employ. It is against the bungling way of it. Even if he did, we doubt that it amounts to hanging we protest — not against the method of
a publication where it is not intended for dissemiexecution itself. That it is, on the whole, the best,
nation. we are convinced.” This may be of interest to the commissioners in this State who have under advise- The celebrated case of Lawrence v. Fox, 20 N. Y. ment the question of changing the mode of capital | 268, has had a narrow escape from reversal. Mr. punishment. Hanging is always liable to the risk of Jesse W. Lilienthal writes against it in the Harvard being “bungling." We learn from the American | Law Review, saying: “It must not be supposed Law Review that in the discussion at the last conven- that the Harvard Law School Alumni have been tion of the American Bar Association on the policy so faithless to the tradition of their Alma Mater as of flogging wife-beaters, some lunatic moved to add to supinely acquiesce in the legal monstrosity born a recommendation that “ any one convicted of rape of the dictum in Lawrence v. Fox” Fortunately for should be burned at the stake.” This leads us to our court the editor of the Recreu explains that the say that the punishment of castration, inflicted for contrary doctrine, on which the young gentleman rape in some States, is barbarous and disgraceful. had been suckled, “is not taught in the school at Such expedients are suited to Feejee Indians, not the present day.” The trouble with Mr. Lilienthal to civilized and dignified communities. Again we is, according to his own statement, that at the outrecommend touching off murderers by Mr. Justice set of his career he was surprised and overturned by Grove's battery.
this offending case.
He also allows himself to say
that the Field Code “ already poses as the layman's The Solicitors' Journal says: “It appears to be de- panacea and the lawyer's dragon. Some of us besirable that every solicitor should at once establish lieve that it will prove a boomerang.” Is this the a special letter book, under lock and key, for copy- traditional rhetoric of Harvard Law School? ing therein any letters which may contain libellous matter, and should be careful himself to copy such letters into the book. In the course of the trial of We find in the Ohio Weekly Law Bulletin a report Maccolla v. Jones last week, Mr. Baron Pollock is re- of the opinion of Judge Sage in the Harper case, in
Vol. 36 — No. 27.
the United States Circuit Court, on the subject of the profanity complained of was practiced by the cumulative sentences, from which we make the fol- persons employed by the defendant at all. In fact lowing extracts: “In the State of Ohio, as held in the evidence shows that it was due probably to the the case of Williams v. State, 18 Ohio St. 46, the tramps and outsiders congregated there for the purSupreme Court declared the common law of Ohio pose of picking up loose scraps and pieces of coal, to be such that cumulative sentences could be im- and things of that sort. The business transacted posed, and by a great majority of cases in England, by this company did not certainly invite profanity especially the recent cases, cumulative sentences are or the crowd on that street; it was not at all incirecognized as proper under the common law of that dent to the prosecution of the business that they country, but by the common law of Kentucky and should assemble there and blaspheme, and we do by the common law of Indiana, as interpreted by not think the defendant properly chargeable with the Supreme Courts of these States, cumulative sen- that part of the grievances complained of." tences are not recognized; and now if this court should follow the common law as expounded by the highest court in the State where the case is tried, In Pullman's Palace-Car Co. v. Pollock, Texas which is the rule recognized by Judge Nelson in the Supreme Court, Oct. 28, 1887, plaintiff paid for å Albro case already referred to, and make that a war- berth in a sleeping-car of defendant. Entering the rant for a cumulative sentence, it would be equally car he placed his valise on the floor in the smoking. bound to follow the common law of the State of
He went out of the car for a short time at a Kentucky in a case arising there, where, according station, leaving the conductor and porter in the car. to the decisions of the highest court of the State, Returning, he found his valise missing. Held, that cumulative sentences are not recognized as legal, the sleeping-car company is responsible. The court and the result would be that for precisely the same said: “Enough appears to show that the appellant offense under the United States law a defendant assumed to the appellee the duties of a carrier,
and convicted in the State of Ohio might be subjected while it is evidently true that it did not assume the to a heavier punishment than could be imposed in duties and liabilities which the common law imKentucky. The consideration is well nigh conclu
poses upon common carriers as to ordinary freight, sive. In Ex parte Lang, 18 Wall. 62, the Supreme or the liabilities which the innkeeper assumes to Court seemed to be of the opinion although it is
guests, yet we see no reason why it should not be not perhaps directly stated (it is plainly intimated held responsible, just as any common carrier would in the dissenting opinion in that case)
that it re
be held responsible for a failure to perforin the dugards a sentence as an entirety. If this be so, the ties which devolve upon the common carrier in relaresult of that might be that a cumulative sentence tion to the baggage of a passenger which is not would invalidate the entire sentence. This court given into the carrier's exclusive custody. The therefore, after a careful consideration, has come to true rule in this class of cases we believe to be that the conclusion that the gravity of this case is such asserted by the Supreme Court of Massachusetts in that it would not be warranted in taking any doubt- the case of Lewis v. Sleeping-Car Co., 143 Mass. 269; ful course in the imposition of sentence upon this S. C., 56 Am. Rep. 852. In that case it is said that defendant, and that it is the duty of the court to while it is not liable as a common carrier, or as an keep itself safely within a safe course. The motion innholder, yet it is its clear duty to use reasonable for a cumulative sentence is therefore overrul:d.” care to guard the passengers from theft, and if
through want of such care the personal effects of a
passenger, such as he might reasonably carry with NOTES OF CASES.
him, are stolen, the company is liable therefor.
Such a rule is required by public policy, and by the N Neitzey v. Railroad Co., 5 Mack. 34, it was held true intent of both the passenger and the company,
and the decided weight of authority supports it. fanity in its neighborhood, unless it is shown that Sleeping-Car Co. v. Diehl, 84 Ind. 474; Palace-Car the profanity was practiced by its employees. The Co. v. Gardner, 3 Penny. 78; Palace-Car Co. v. court said: “Now it is claimed that the company Gaylord, 23 Am, Law Reg. 788.' The facts that a should not be charged with the profanity occurring railway company to whose train a sleeping-car may in that neighborhood, and we hardly see how it can be attached may not own such car or control its inbe properly so charged. We have seen a case in ternal management, and that the same may be unthe books in which a man was held responsible for der the control of a company who does own and opsomething like this: where he gave an entertain- erate such car, and that the main compensation for ment on the common or highroad which attracted transportation may be paid to the company to whose many disorderly, noisy and unruly people, he was train the sleeper is attached, do not deprive the held responsible for the nuisance occasioned by company so owning and operating a sleeping-car of them. But that was a case where the very business the character of a passenger carrier; for the contract in which he was engaged invited people of that of such a company is not only that the passenger class. It was a part of his entertainment, and a may sit and sleep in the car during the journey for necessary incident of it that this nuisance should which he contracts, but it goes further, and binds be created. This instruction does not show that the owner of such car to transport the passenger in
IN that a rais way is not
it or some like carriage to his place of destination, nor morally responsible for 'the consequence which the passenger having paid the fare demanded by resulted from his exposure that night. As we unboth companies. If passengers by railway train re- derstand the evidence in this case, the plaintiff does tain the exclusive custody of their baggage then not seek to charge the defendant for the negligence the carrier is not responsible for its loss, unless this of his servants, or for the negligence of the poor peoresults from the carrier's negligence, and the failure ple under his care, but for his personal neglect in of a passenger to use reasonable care in reference to not providing a more secure place for him, and in it will defeat his right to recover. In the case be- not attempting to rescue him from the inclemency fore us, the court below, in the absence of conclu- of the weather, when he knew the plaintiff had un. sions of fact and law showing to the contrary, must consciously exposed himself to great danger therebe presumed to have decided this case in accordance from. The defendant, having permitted the plainwith the rules we have announced. This involved tiff to remain in his house, knowing his condition a finding of fact that the valise was lost by reason and his disposition in his delirious state to expose of the failure of appellant to use such care as the himself to the dangers of the cold and snow in the law requires, and withont failure on the part of the night-time, cannot divest himself of all responsibilappellee to use that care requ of him."
ity for his care and safety. He cannot be grossly negligent of the welfare of this unfortunate man
and hope to escape all legal responsibility. He In Meier v. Paulus, Wisconsin Supreme Court, might perhaps, under the evidence in the case, have Nov. 22, 1887, in an action against a county poor- refused to receive him into his house or under his master for neglect in not properly caring for plain-care, and when, as he says, he found that the tiff while in his charge, it was claimed in defense plaintiff had been placed in his house in his that plaintiff was brought to the poor-farm without absence, and without his knowledge or consent, he authority from the proper officers of the county, and might have refused to take any responsibility in reduring the absence of defendant; and that defend- gard to him, and he might have carried him back ant was not required by law to receive or care for and left him in the custody of those who had him. Held, that the fact that the plaintiff was re- brought him to his home; this he did not do, but ceived, and care bestowed upon him by defendant permitted him to remain, and undertook to care for made defendant responsible for such care and at- him. The material question in the case was whether, tention as ordinary prudence required. Whether after undertaking such control and care of the plainsuch care was given was a question to be submitted tiff, he was guilty of such neglect as resulted in an to the jury. The court said: “It may be admitted injury to the plaintiff. Did he give him such care that the plaintiff was brought to the poor-farm with and attention as a man of ordinary prudence would out any authority from the proper officers of the have given under like circumstances? If he did not, county, and that the defendant was not required by he did not do his duty. And whether he did or not, law to receive the plaintiff into the poor-house, or was, we think, clearly a question of fact for the to take care of him there; still the fact remains that jury, and not of law for the court. See Cooley he did receive him into his house, and did under- Torts, 630, 683, and cases cited in notes; also page take to take care of him. There was evidence tend- 668.” ing to show that he knew of the nature of the plaintiff's disease; he knew that he was not permanently
OLD DUTCH ROADS. insane or a lunatic; he also knew that the effects of the disease under which he was laboring rendered him for the time wholly incompetent to take care of IN searching the title to property in the upper part
of New York city, attention is sometimes directed himself; he knew that in his delirium he was inclined
to land which once formed the bed of a road long to leave the house and expose himself in that way. disused, and inclosed by the adjoining owners; and There was evidence that he knew that he had left
it often becomes important to ascertain whether such the house the first night he was in his custody, owners had the legal right to inclose portions of the and the evidence certainly tended to show that
road, and to claim that the fee of the portions so in
closed was vested in themselves. about 2 o'clock A. M. on the second night, the plain
In determining this point it is necessary to ascertiff had left the house again, with nothing but tain at what time, by what authority, and in what stockings on his feet, and nothing but his shirt and circumstances the road was opened, and this leads us pantaloons on his body. He knew the weather was to inquire who owned the fee of the land over which very cold, and the snow deep, and that the proba
the road was originally laid out.
It has been generally conceded, that by international bilities of his being injured by his exposure were
Jaw the fee of all the land on Manhattan Island was very great; yet he made no attempt to rescue him
vested by right of discovery, in the States General of from this dangerous situation himself, nor did he Holland. From them it passed by charter in 1621, to request or direct any person under his control to the Dutch West India Company, and the company make any attempt to rescue him. We do not think further protected their rights by buying out the that as a matter of law, a court can say that there
Indian title to the island.
During the Dutch occupation it might fairly be aswas no evidence tending to show that the defend
suined, even if evidence were wanting, that all quesant neglected his duty toward the plaintiff in his
tions relating to land would be governed by Dutch unfortunate condition, and that he is neither legally law; but it is also expressly stated in the charter from
the States General to the West India Company, that Roads and streets in cities are governed by provisthe colony was to be governed by the ordinances of ious in their charters, or by specific legislation as to the company, and in default of these, by the civil law. particular cities. By the Laws of 1818, chap. 213, the Any roads therefore which were laid out during the mayor, aldermen and communalty of the city of New Dutch occupation were governed by the civil law in York, if they wished to alter or close any existing respect to their creationi, discontinuance and the ulti- street, road, etc., were authorized to apply to the Sumate ownership of the fee. Hoffman Corporation, 92 ff. preme Court, for the appointment of three commis
The civil law gave the fee of a highway to the State, sioners of estimate, who were to appraise the damage subject to the public use, and left no title to the fee sustained by property owners by reason of the closing in the adjoining owners. Hoffman, 305, and authori. of the street, road, etc. Their report was subject to ties cited. In this it differed from the common law the confirmation of the court. This power of applyby which each adjoining proprietor owned the fee of ing for commissioners is at present conferred on the one-half of the road-bed, subject to the public ease- board of street openings, as to all streets in the city ment. Jackson v. Hathaway, 15 Jobus. 447; Matter of south of Fifty-Ninth street, and on the department of John and Cherry Sls., 19 Wend. 659. The result is that public works as to all streets north of Fifty-Ninth on the discontinuance of a high way, the fee of the street, except in the Twenty-Third and Twenty-Fourth road-bed vested, by the civil law, in the State, by the wards. Laws of 1873, chap. 335, Laws 1882, $ 1010, etc., common law, in the adjoining owners, one-half to each. Consolidation Act. In this case also there is no proIt is evident therefore that the fee of all the roads vision for the closing of a road by any except the opened on Manhattan Island during the Dutch occupa. regularly constituted authorities. tion vested in the State, and passed to the English It would seem therefore tbat the action of an adjacrown on the conquest of the island by the English in cent owner in fencing in a portion of such road was 1661. Dunham v. Williams, 37 N. Y. 251.
unauthorized by statute and illegal. The highway, Thereafter in the year 1686, Governor Dongan, not having been legally discontinued, was still a highgranted to the mayor, aldermen and commonalty of the way; and any fence across it was an obstruction of city of New York, all the vacant and unoccupied lands it, and per se a nuisance. Driggs v. Phillips, 103 N. Y. on Manhattan Island not already granted, and all the 77; Hume v. Mayer, 74 id. 264. The obstructions streets, lanes and highways within the city of New might have been removed at any time by the authoriYork and Manhattan Island; so that the fee of all the ties in the manner provided by statute; or by the Dutch roads, and of all the land not previously common-law methods of indictment or abatement. granted by the Dutch or English patents vested in the Wetmore v. Tracy, 14 Wend. 250. Nor could any right corporation of New York. The principal grans that be gained by prescription. It is well settled that no it is important to notice is that of the Harlem Com- length of time will legalize a nuisance. Driggs v. mons, so-called, wbich were granted to the freeholders Phillips, supra; Dygert v. Schenck, 23 Wend. 446, and of Harlem by Governor Nichols in 1666-7, and con- the public still have an apparent right to bave the firmed by charter of Governor Dongan in 1686, pre- road open as a highway. vious to his charter to the corporation of New York. It follows that the adjacent owners gained no title The line between the lands of Harlem and New York to the land inclosed by them by the common law and ran nearly north and south, from a point on the statutes, and we have already seen that they could Hudson river near One Hundred and Thirtieth street have no title by the civil law, so that the title is still in to a point on the East river near Seventy-fifth street. the corporation of New York, either absolutely, or in Several roads were opened through these Harlem trust for the use of the public. Commons before they were divided among the free- It may however be said that the ublic easement holders, and it is a question whether the fee of such has nothing to do with the fee, and that the only roads became vested in the town of Harlem, and thus right of the public is to have the road kept open. later in the city of New York, or whether it passed to Since the public, by their failure to use the road, have the adjoining owners at the time of the division. In justified the owners in believing that this right would regard to New York, it is clear that the city owns the never be exercised, it might be argued tbat the public fee of all the Dutch roads, and of all roads and streets easement is extinguished, and that the question of laid out through the lands granted by Dongan's char- title is one simply between the city and the adjacent ter.
owners. The question then arises whether the city In course of time, as the city grew yorthward, and differs from an individual as to its ownership of land. new streets were opened, some of the old roads were It is evident that any private owner of this land would disused, and were fenced in by the adjoining owners have lost his title by adverse possession on the part of on both sides, who conveyed the road-bed so fenced in the adjacent owners, and it is difficult to see how a under a claim of title. Let us take a case of this kind, municipal corporation can stand in any better posiassuming for the purposes of the discussion that it tion. See Robie v. Sedgwick, 35 Barb. 319. Certainly was a Dutch road, the fee of which was in the city. municipal corporations are not excepted from the
The first question that occurs is whether a highway statute of limitations. They have all the other incican legally be discontinued by private means. It dents of ownership; why then are they not subject does not matter whether the road is recorded or not. to adverse possession? We have assumed tbat the Any road used for twenty years prior to March 21, public easement is extinguisoed; but eveu if it were 1797, 18 by law a high way, though not recorded. Laws not, there is reason to believe that the fee of a high1813, chap. 33. $ 24. It is subject therefore to the laws way may be transferred from one owner to another by of the States in respect to the closing or discontinance adverse possession for more than twenty years, subof highways in the cities or townships of the State. ject in any case to the public easement. Bliss v. The latter are governed by the general highway laws, | Johnson, 94 N. Y. 235. In this case therefore the in which the methods of closing and discontinuing owner would have a perfect title against all the world, roads are specified. 1 R. S. 513, ff. Under this act, the only flaw in which would be the public right to the commissioners of highways, of their own motion, have the premises kept open as a public highway, and or on petition of a property-owner of the township, it would seem that a regular legal discontinuance by have power to close and discontinue the road. The the proper authorities would remove that flaw, and proceedings are minutely specified, and there is no leave a perfect title in the adjacent owners. provision for the closing of a road by private persons,
This reasoning however proceeds upon the theory or by any other method than that set forth in the act. that the publio easement may be lost by non-user.