The People of the State of New York ex rel. William H. Butler and George P. Butler, Appellants, v. Frederick W. Hawxhurst and Others, Composing the Board of Highway Commissioners of the Town of Oyster Bay, Respondents

The People of the State of New York ex rel. William H. Butler and George P. Butler, Appellants, v. Frederick W. Hawxhurst and Others, Composing the Board of Highway Commissioners of the Town of Oyster Bay, Respondents. Second Department, December 23, 1907. Highway — obstruction of accéss to water front — mandamus. Mandamus will lie to compel highway commissioners to remove bath houses placed on a highway above the high-water mark so as to cut off access to the water. Appeal by the relators, William H. Butler and another, from an order of the Supreme Court, made at the Nassau. Special Term and entered in the office of the clerk of the county of Nassau on the 17th day of December, 1906, denying the relators’ motion for a peremptory writ of mandamus, and dismissing an alternative writ of mandamus theretofore issued herein, and also from a judgment in favor of the defendants, entered in said clerk’s office on the 17th day of December, 1906, pursuant to such order. This is a proceeding by residents of the town of Oyster Bay, Nassau county, to obtain a writ of mandamus to compel the commissioners of highways to remove obstructions from a public highway. The issues raised by the return to the alternative writ were tried by the court without a jury, and final order entered for the defendants. Bertram L. Kraus, for the appellants. George B. Stoddart, for the respondents. [MAJORITY — Gaynor, J.:] Gaynor, J.: In 1877 the commissioners of highways made an order opening a highway now called Maple avenue down “ to.the shore or highwater mark”, i. e., to the, shore of the bay called Oyster Bay, and the highway has ever since been open'and in public use. There is nothing to show that land of the town was taken along the shore above highwater mark without any notice to the town officials in the opening of such highway, as the defendants claim; nor does it appear that the town owned any land there. Above highwater mark at the foot of and upon the said highway several persons have erected bath houses, and this proceeding was to obtain a peremptory writ . of mandamus against the defendants, the highway commissioners, to compel them to remove such obstructions. With the obstructions- there access to the water by the said highway is. substantially cut off. A dock or landing there out into the water would be a very different thing. The final order should have been for the relators, as such a proceeding is maintainable (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390). The final order should be reversed, and a new' trial ordered. Woodward, Jenks, Hooker and Bien, JJ., concurred. Order reversed and new trial ordered, costs to abide the event.