It will be noticed that the application describes the proposed road as being in the town of Woodstock, county of Ulster, and the width, courses, distances, and the termini; and further describes it as following the bed of the old Winne road, except for the distance of about 200 yards on the second course. The Winne road was a way across the lands of the plaintiff and his brother, Samuel L. Satterly, which had been used for 16 or 18 years by the defendant and others. It was plainly marked on the ground by such user, but had never been legally laid out; and its use by the defendant had been by the license of the owners of the land only. The descriptions in the application of the termini of the proposed road are indefinite, except as they are made definite by the reference to the Winne road. The point of commencement is the "bars," and the point of termination the "lands of William Satterly." But where the "bars" were located, and at what precise point upon the lands of William Satterly the road was to terminate, is made definite by the reference to the Winne road, provided that road itself is such a definite monument as may be referred to, to make certain the indefiniteness of the description in other respects. The center line of the old road-bed must be intended to be the line described in the application. People v. Commissioners, 13 Wend. 310. The location of this center line will determine the exact termini of the proposed road.

It was held in People v. Commissioners, etc., 37 N. Y. 360, that a description of a proposed highway by reference to an established highway was a sufficient description by "metes and bounds," under the general highway act. It is true that the description of public highways is usually matter of public record, although this is not always the case; and what the fact was in this respect, in the case cited, does not appear. A private way by permission, not a matter of record, is a less certain monument than a recorded highway. But where such a way has been used for a great number of years, so that it has come to be called a road, there is little chance of uncertainty, and a description in an application by reference to such road gives substantial certainty to the description. The statute must, doubtless, be substantially complied with; but exact and technical accuracy in proceedings for the laying out of a private road, conducted, as they usually are, by persons not lawyers, cannot be expected. Few private roads would bear the test of a scrutiny which required a verbal and literal conformity to the words of the statute. We think the application did specify with sufficient distinctness the termini of the proposed road.

The course and distance of each line are stated in the application. The courses are not given by the compass, and the distances are approximate; but these are also made certain by reference to the Winne road, except where, on the second course, the proposed road leaves the Winne road for the distance of about 200 yards. But natural monumentsthe apple-tree, the hill, and the thickets of hemlock and laurel-mark the divergence and the point where the old road-bed again becomes the line of the new road. The statute does not require that the courses shall be specified by the compass in degrees and minutes; and, where the gen

eral course is given in the application as easterly or westerly, etc., and where the exact course and distance can be determined from other particulars in the application, or by natural monuments referred to therein, the statute is substantially complied with. We are of opinion, therefore, that the application conformed to the statute, and gave jurisdiction to the commissioners to call a jury, and authorized the jury to act upon the application. It is undisputed that the jury, before making their determination, proceeded, in presence of the commissioners, to view the premises; that the proposed road was staked out; and that the damages were assessed for the land within the boundaries so designated on the ground.

The most serious objection in the case arises upon the order of the commissioners laying out and describing the road after the jury had found that it was necessary, and had assessed the damages. The order in describing the road does not follow the description in the application. It describes the road as beginning at the bars, etc.; "and then running an easterly course of 988 feet; and then a north-east course, 760 feet; and thence bearing a little more east, 309 feet; thence bearing more north, 252 feet;" and so on. It is indefinite; and, except that it refers to the application, and declares that the commissioners had ordered that the road be laid out pursuant to the application, according to a survey made by them, would be incurably defective. The first course given in the order, running 988 feet, embraces the first two courses in the application. The distance by measurement of the first two lines, as given in the application, is about 1,000 feet.

The inference from the description in the order, unaided by the application, would be that the first course of 988 feet was a straight line, whereas in fact there is a bend in the road, as described in the application, before reaching the termination of the second course, and a straight line from the bars to the termination of the second course would leave the locus in quo outside the road. But if the description in the application is deemed to be incorporated into the order, the two descriptions can be substantially reconciled. It would then appear that the distance of 988 feet was not a straight line, and so as to the other discrepancies and uncertainties in the lines specified in the order. We are of opinion that the description in the application is the controlling one, and determines the actual locus of the way. In laying out a private road, if the jury find in favor of laying out the road, the commissioners are bound to lay it out as described in the application, and have no discretion either to refuse to lay out the road, or to change its location, or to depart in any respect from the road proposed by the applicants. They have no power to decide anything, but perform simply the ministerial functions prescribed in the twelfth section of the act of 1853. That section is as follows:

"The commissioners shall annex to such verdict [of the jury] the application mentioned in the first section of this act, and hand the same to the town clerk, who shall file the same; and the commissioner or commissioners shall lay out and make a record of said road, as described in the petition of the applicant.

It is true that the road certified by the jury does not become a legal private road until the commissioners have performed the duty imposed by this section. That the verdict and application were duly filed is not questioned. The order declares that it was laid out pursuant to the application. The description in the order does not follow the language in the application. But this we conceive cannot be essential, provided the description in the application is incorporated into the order by reference, and the two descriptions are not irreconcilably repugnant.

While, on the one hand, we recognize the importance of the rule that proceedings in invitum, to divest an owner of his property, ought to be carefully watched, so that no injustice be done, on the other hand, we cannot fail to recognize the importance of the public policy, sanctioned by constitutional provision, which requires that facilities be furnished for private ways, so that the property of citizens may be made accessible. This policy will be best promoted by a fair and reasonable, instead of a strained, construction of the statute authorizing the laying out of private roads; and we are of opinion that there was no defect which invalidated the proceedings in this case.

The point that the road ran across the land of one Evans, who was not named in the application, or notified, and whose damages were not assessed, is not supported by the evidence taken in this proceeding, and the point was not raised on the trial. If the question was before us, it would, we think, admit of great doubt whether the plaintiff could allege a defect or omission in the proceedings, affecting the right of a third person, with whom he was not in privity, and who raises no question, and so far as appears makes no complaint.

We think the complaint was properly dismissed at the circuit, and that the order of the general term should be reversed, and judgment entered for the defendant.

(101 N. Y. 146)

WOLF v. KILPATRICK.

Filed January 19, 1886.

NUISANCE-DEFECTIVE COAL-HOLE-LIABILITY OF LANDLORD.

Where there has been a permit from the city to construct a coal-hole under a sidewalk, with an opening leading to it, and while it is under the entire control of a tenant, through a defect in the stone, caused by strangers, plaintiff is injured, she cannot recover against the owner of the premises merely because he is the landlord. He is not liable unless the injury was caused by some fault on his part; and where it was the tenant's duty to repair the stone, and his neglect which left it unsafe, there is no liability on the part of the owner.

W. F. MacRae, for appellant, Walter F. Kilpatrick.

H. Morrison, for respondent, Rebecca Wolf.

FINCH, J. The defendants who appeal were shown to be the owners of premises which had vaults for the storage of coal extending under the sidewalk. The plaintiff was injured by a defect in the stone supporting the cover of the opening, which arose while such premises were in the

occupation of one McPherson and others, who were tenants having entire control of the premises. The defect was not one of original construction, but occurred through the act and interference of third persons engaged in building the elevated railway, and who broke the stone supporting the iron cover so that it turned under plaintiff's weight and occasioned the injury. We do not know at what time prior to the accident the defendants became owners. The building and the vault were constructed by McPherson; and if, at the time, the appellants were owners, and responsible for the work actually done, it is still established that the vaults were built under a permit from the city, and in accordance with that license. The coal-hole and its cover were safely and properly constructed, and in the usual and permitted manner. The case is not, therefore, within the doctrine of Clifford v. Dam, 81 N. Y. 52, and the kindred authorities cited by the respondent. In that case no permission or license from the municipality to make the excavation was either pleaded or proved, and the construction of the vaults was an unauthorized wrong and a nuisance, for the consequences of which the owner was responsible, irrespective of the question of negligence. There was the same lack of special authority in most of the other cases to which we are referred. Anderson v. Dickie, 1 Robt. 238; Dygert v. Schenck, 23 Wend. 446; Congreve v. Morgan, 18 N. Y. 79. Nor is the case one in which the owner or landlord has let the premises when in a defective and dangerous condition, (Davenport v. Ruckman, 37 N. Y. 568,) for the proof establishes no such ground of liability.

The evidence does not disclose the precise legal relation existing between the occupants and owners. The former were tenants of some kind, although it does not appear that any rent was reserved or paid to the owners, or that the latter were ever in possession at all. On the contrary, McPherson testified that from the time he built the houses, which was in 1857, to the time of the accident, he had the care and control of the premises, both as owner and occupant; so that the recovery must stand, if at all, upon the sole ground that an owner, who has constructed vaults under the sidewalk lawfully, and with due prudence and care, and transferred possession of the premises, if he ever had it, to third persons, without covenant on his part to repair, is liable for a defect in the vault covering which afterwards occurs through the interference of a stranger, although he may have had neither notice nor knowledge of the defect. The court went so far in the case as to charge that "if the plaintiff sustained injury by reason of the defective condition of said coal-hole, and without contributory negligence, then said defendants Kilpatrick are liable in damages," to which there was an exception. The court was asked to charge "that notice of the alleged condition of the coal-hole must have been given to the Kilpatricks before they could be held liable as owners, when the possession was in McPherson," and that, if McPherson was in the control and care of said premises, and deriving all the benefit therefrom, he alone is liable to the plaintiff." These requests were refused, and the appellants excepted. The basis on which the case was sent to the jury was still more clearly developed in the course of the

charge. After stating the liability of the city as founded upon negligence, and involving notice, actual or constructive, of the alleged defect, the learned court added:

"The law is a little more severe with respect to the owners of the premises for whose benefit this hole in the sidewalk has been authorized. It holds them to a stricter liability. A party injured by falling through any coal-hole in the sidewalk is not bound in the case of the owner of the premises to show that the owner had notice that the hole was out of repair. It appears, according to the current of decisions, that the owner of the premises is bound to see that the coal-hole, and the cover over it, affords just as safe a passage to the wayfarer as any other portion of the sidewalk. Therefore the question with respect to these defendants, who are the owners of the property, is simply how much they should be required to pay the plaintiff."

The doctrine of the trial court was thus made extremely plain. It went upon the ground that the defect in the vault-stone was a nuisance for which the vault-owner was responsible, though out of possession and control, without the least knowledge of the fact, and when the defect was produced by the interference and misconduct of strangers.

It may be that the condition of the coal-hole in the sidewalk became a nuisance while McPherson was in possession, and after the stone was broken, (Swords v. Edgar, 59 N. Y. 34;) but, if so, the party responsible can only be the person who either creates the nuisance or suffers it to continue. The owners did not create it,-that was the wrongful act of strangers. How can it he said that they suffered it to continue, and so failed in their duty, if they had no knowledge, actual or constructive, of the defect, and were out of possession and control? That can only be true on the theory that every owner of rented property in New York is bound to watch the sidewalks and coal-holes in front of his premises, and protect them against unauthorized trespassers, and is bound to know when such trespass is committed. We are aware of no case which goes so far as that. In Swords v. Edgar, supra, the premises were a pier upon which the public having business were invited to go, and which became dilapidated, whereby injury arose. That condition was denominated a nuisance, for which, primarily, the lessee in the actual occupation was liable; and he was held to be so liable, independent of any covenant to repair, and solely by force of the occupancy. But it was also held that

the lessors were liable, and upon the ground that the pier was unsafe when demised, and they took a rent for it in that condition. The whole drift of the opinion shows that the landlord out of possession is not responsible for an after occurring nuisance, unless in some manner he is in fault for its creation or continuance. His bare ownership will not produce that result. It was said in Clifford v. Dam, supra, that proof of authority from the municipality to build the vault would mitigate the act from an absolute nuisance to an act involving care in the construction and maintenance. In Clancy v. Byrne, 56 N. Y. 133, it was held that if the premises are in good repair when demised, but afterwards become ruinous and dangerous, the landlord is not responsible therefor, either to the occupant or the public, unless he has expressly agreed to repair, or has renewed the lease after the need of repair has shown itself. In the recent case of Edwards v. New York & H. R. Co., 98 N. Y.