William R. Cary, Appellant, v. Samuel Dewey, Respondent

William R. Cary, Appellant, v. Samuel Dewey, Respondent. Third Department, June 18,1908. Beal property—maintenance of private water pipe on public highway —rights of abutting owner of fee—-usé not public. While the commissioner of highways and the. supervisor of a town may authorize the installment and maintenance of a private water pipe at the side of a highway over Which the public has a right of way in so far as the public easement is concerned, such permission is ineffective as against, an abutting owner .whose.title extends to the center of the highway, and his complaint seeking damages against the owner of the pipe for opening the trench to repair the same ' in front of the plaintiff’s premises should not be dismissed, but on the contrary a verdict should be directed for such damages as the jury may find that the plaintiff has sustained. The construction and maintenance Of such pipe for the purpose of' supplying water to an hotel is not a public use of the highway, but a private use for personal benefit. Appeal by the' plaintiff, William B. Cary, from a judgment of the County Court of Washington county in favor of the defendant, entered in the ofSbe of the clerk of said county on the 8th day of'February, 1908, upon the dismissal of the complaint by direction of the court.' Abner Robertson, for the appellant. Erskine O. Rogers and Frederick Fraser for the respondent. ' [MAJORITY — Cochrane, J.:] Cochrane, J.: ■ For many years prior to 1902. there was on the- side of a highway a pipe which conducted water from a spring to a-hotel property now owned by defendant. In the latter year the owner of the hotel without plaintiff’s knowledge or consent dug a trench -on the opposite side of the highway and in front of premises owned by plaintiff, the title to which premises extended to the center of the highway, and transferred to such trench the pipe line connecting said spring and hotel. The defendant subsequently purchased the hotel property and against plaintiff’s protest opened the trench for the purpose of repairing said pipe. To redress such grievance this action was instituted. The. learned county judge dismissed the complaint, because the commissioners of highways and the supervisor of the town had granted their permission to lay and maintain such water pipe pursuant to section 14 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1897, chap. 204). , Under that statutory provision the town officers represent the public and their permission as therein provided suffices so far as the public ownership of an easement over the premises in question is concerned. Defendant and bis predecessor in title could not interfere with that public easement without such permission. . But after acquiring such permission they still had to reckon with plaintiffs ownership of the fee in the highway. The permission of the town officers in no way operated to justify the- acts complained of as' * against plaintiff’s individual rights. The construction and maintenance of said pipe line constitutes in no sense a public use of the highway but a private use thereof by the defendant for Ms individual and personal benefit. The water was used solely, in connection with his hotel and if he permitted the public to use the same such use nevertheless was incidental and-subordinate to his ownership and did not constitute a public use in • the ordinary or true sense. On the" evidence presented a verdict should have been directed in favor of plaintiff for such damages as the jury might have found that he had sustained. The judgment must- be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. • Judgment reversed and new trial granted, with costs to appellant to abide event.