O'Donnell v. Preston

The plaintiff would enjoin the defendants, the sidepath commissioners óf Suffolk county, from the construction or maintenance of any sidepath in front of her premises in the village of Port Jefferson. I think that the learned Special Term (Wilmot M. Smith; J., presiding) was justified in finding "that the plaintiff consented to the construction. She did 'object to the removal of the Curbstone to the *87outside of the sidepath, hut it appears that such curbstone was originally set at the expense of the Village Improvement Society, which consented to the removal; and I think, moreover, that the relocation thereof was within the control of the highway commissioners.

The main contention of the learned counsel for the appellant is that the provisions contained in section 2 of chapter 152 of the Laws of 1899 as amended by chapter 640 of the Laws of 1900, “No sidepath shall be constructed upon or along any regularly constructed or maintained sidewalk, except with the consent of the persons owning the abutting lands,” makes the consent of the plaintiff a prerequisite to the construction of this sidepath. As it is undisputed that the sidepath is wholly outside of the sidewalk, it follows that such contention involves the proposition that the word “along” is synonymous with the words “alongside” or “ adjoining.” I think that the use of the word “ along ” in the phrase “ upon or along ” is to complete the idea of superimposition. For “ upon ” means “ on,” and a sidewalk presents the feature of length or extension, and I think that “ along ” is used in complement to that idea, as it means literally “ in line with, in connection with.” (Cent. Dict.) In Pratt v. Atlantic & St. Lawrence R. R. Co. (42 Maine, 585) the court say: “ Under the word along,’ and as an adverb in Webster’s Dictionary, is the following: Sax. and-long, or ond-lang ; Fr. au-long, le-long. See Long. The Saxons always prefixed and or and, and the sense seems to be by the length, or opposite the length, or in the direction of the length.’ ” In Heath v. D. & St. L. R. Co. (61 Iowa, 14) one provision of the ordinance authorized the construction of defendant’s road “ along ” an alley, and another provision a construction “ on, over and along; ” and the court held the words synonymous, and that in using the word “ along ” the ordinance did not authorize a construction “ by the side of.” I think, then, that the word should be read as referring only to construction within the lines of the sidewalk. To give “ along ” as used in this statute the full force of “ alongside of” is not to make it a synonym of another word, but is to disregard the force of a compound with the very same word, although such compound itself expresses the idea of locality, namely, beside, by the side of. (Cent. Dict.) In Arbenz v. Wheeling & H. R. Co. (33 W. Va. 1, 9) it was held that the “ word ‘ along ’ used with reference to a street could *88not in our (their) statute mean ' along the side ’ of the street, because shch meaning would Confer no right whatever in respect to the street, but would leave the railroad to make its way through the adjoining lots owned by private individuals without the consent of the city or any aid from this statute.” I think that the plain intent of the statute is to permit the construction of sidepaths within the lines of highways and to limit their location within such lines, but not to permit construction upon any regular sidewalk unless the abutting owner consent. The bicycle is to be regarded as a vehicle that may properly be used lipón highways. (Ryan v. Preston, 59 App. Div. 97; 1 Thomp. Neg. [2d ed.] § 1335, and authorities cited; Elliott Roads & Streets [2d ed.] § 852, and authorities cited.) In Ryan v. Preston (supra) we held, per Hirschberg, J., that the bicycle does not impose an additional burden upon the highway, but that as a carriage or vehicle it has place upon the public roadways, and that the statutes authorizing sidepaths within the lines of a highway are constitutional in that they were regulations in the furtherance of the safety and convenience of the public. It is not to be assumed that the Legislature would intend to make this regulation, of the use of a highway in the interest of the public lawfully traveling thereon depend upon the consent of the adjacent property owner. There is no good reason for it, for it does not appear that any right of the abutting owner could be affected by requiring bicycles in the highway to be kept apart from other vehicles instead of traveling on all parts of the highway. On the other hand, to permit any abutter, as such, to veto this regulation of public traffic within the lines of a public way would put it within the power of an individual whose rights were not involved to defeat á measure adopted for the safety and convenience of the public. But there are obvious reasons for prohibiting the permanent invasion .of the sidewalk by constructing thereon a v?ay for vehicles which are classed with carts, wagons or carriages, and the consequent destruction of the distinctive character o-f the sidewalk without the abutter’s consent.

The judgment should be affirmed, with costs.

All concurred.

Judgment "affirmed, with costs.