Re: O.T. Power Company Tree Clearing, Trimming etc.

Posted by jdemaris on June 05, 2008 at 13:39:40 from (67.142.130.12):

In Reply to: Re: O.T. Power Company Tree Clearing, Trimming etc. posted by Billy NY on June 05, 2008 at 12:07:31:

Here are a few pieces of New York highway law and/or case-law that I bet neither your highway supervisor or town attorney know anything about.

One other note. Probably now I'm going to sound like a wacko - but I just got done (I think) with a battle with Verizon. Over two years ago, I hit and underground phone cable out in the middle of my cornfield - all unmarked and 8 inches deep. I helped their guys fix it and did all the escavation with my own backhoe. A year later, they sent me a bill for over $4000. So, I sent them MY bill. They threatened me, over and over, saying I violated the "Dig New York" guidlines and several laws. Well . . . I got them all and read closely. Farm equipment on my property is exempt - case-closed. I'm sure they knew that all along but figured they could scare me into paying them anyway. And, I'd been asking them for 10 years to mark all their underground cables on my property and they refused.

Here's the road stuff:

Highway Law, Article VIII: Town Highways NY CLS High Sec. 189 (2000)

All lands which shall have been used by the public as a highway for the period of ten years of
more, shall be a highway.

The width of a highway by use is determined by the extent of the use. 1947 Ops St Compt 273.

A highway may become a public highway through public use irrespective of width; the width of
such a highway is defined by the extent of the use. 1955 Ops St Compt File #7515.

The width of a highway by virtue of public user is determined by the extent of the use, and
where less than three rods have been coninuoulsly used and maintained for more than fifteen
years the width is limited to the traveled portion of the road . . . 1961 OPS St Compt #821

Whether a road becomes a public highway by “user” depends upon compliance with the
provisions of this section, but the burden of establishing “user” rests upon the town in which the
road situated and must be established by a perponderance of the evidence, and it was not the
legislative intent in enacting this section to permit a town to appropriate land not actually in use
as a road without the consent of the owner or by due process of law, and the town which
appropriated land for road purposes and in so doing destroyed valuable trees is liable in
damages. Van Allen v. Kinderhook (1965)

Purpose of said law is not to authorize town superintendent to appropriate lands not actually in
use as roads without consent of owner, and to do otherwise would result in unconstitutiioal
taking of real proerty without due process of law. Usher v. Mobbs (1985)

CLS Highway Law Section 189 does not create town easement of 3 rods width since width of
road deemed public highway by virtue of public use is determined by width of actual use of road
. . . Usher v. Mobbs (1985) 129 Misc 2d 529, 493 NYS2d 531.

Replies:

• Re: O.T. Power Company Tree Clearing, Trimming etc. tlak 14:28:57 06/05/08 (0)

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