Law, a Revolutionary Idea for Peace

(with a Post Script Commentary on the case of the Gun-Toting Grandma (weffen oma ) and similar cases)

Copyright 1999 Mark Ferran . Rev. 3/25/99. Contact Author for permission to copy, publish, or distribute.

Lincoln said "Let [Law] be preached from the pulpit, proclaimed in legislatures, and enforced in courts of justice."

1.  The Law Clauses of the Constitution of the United States were adopted by the People to promote enduring Peace, and to Secure Life, Liberty and Property against unlawful deprivations by public agents exceeding the limits of lawful authority.  The primary Law Clauses of the Constitution are found in the Fifth Amendment (in the Bill of Rights), and in the Fourteenth Amendment:

Express guarantees of Law are also found in the State Constitutions of every State in the Union.  For example, in the Constitution of the state of New York, express guarantees of Lawful government are found in at least four provisions of the New York State Bill of Rights.  All of these Law Guarantees have a common origin.

2.  The U.S. Constitution prescribes a Rule of Conduct for all government agents.  The Constitution absolutely forbids any government agent from committing any deprivation "of life, liberty, or property without due process of law." By the Constitution, no "power is given, but is absolutely prohibited, both to the executive and the legislative, to deprive anyone of life, liberty, or property without due process of law...." United States v. Lee, 106 U.S. 196, 220 (1882); Tindale v. Wesley, 167 U.S. 204, 217 (1897). The word "without," as used in the Process of Law Clauses, means "Outside; beyond; in excess of." Black's Law Dictionary. "Without" is the logical opposite of "within."  The Constitution literally forbids all governmental deprivations of life, liberty or property committed outside the Law and the processes which law prescribes.  Chicago, Burlington &c. R'd v. Chicago, 166 U.S. 226, 241 (1896) (quoting 2 Story Const. § 1956 (Cooley ed.)).  The Constitution forbids any governmental deviation from the prescribed process of law which shall, or may, deprive any person of his life, liberty, or property.  In short, the US Constitution established "a Government of Laws, not of Men." Marbury v. Madison, 5 US (1 Cranch) 137 (1803); Yick Wo v. Hopkins, 118 US 356 (1886).  "Constitutional government is a government by law. The office of the state is to establish and maintain laws."  Henry Campbell Black, American Constitutional Law §70 (4th ed., West Pub. 1927).

3.  The Due Process of Law Clauses, of the Fifth and Fourteenth Amendments, protect a "person's right to enjoy what is his, free of governmental interference." Fuentes v. Shevin, 407 U.S. 67, 82 (1972). The Due Process of Law Clauses are designed to protect persons from deprivations by "public agents transcending the limits of lawful authority." Hurtado v. California, 110 U.S. 516, 535-36 (1884).

4.  The Supreme Court has explained that the Equal Protection of the Laws Clause

5.  The Equal Protection of the Laws Clause "prohibits any State to deny to any individual the equal protection of the laws." Cotting v. Kansas City Stock Yards Co Etc. 183 US 79, 110 (1902). "Equal protection of the laws requires equal operation of the laws upon all persons in like circumstances." Maxwell v. Bugbee, 250 US 525, 541 (1919). It "means that the rights of all persons must rest upon the same rule under similar circumstances ... so that all persons similarly circumstanced shall be treated alike." Louisville Gas Co. v. Coleman, 227 US 32, 37, 38 (1928).

6.  The "Fourteenth Amendment was a new Magna Charta." (18 Fed. 385, 429).  The Supreme Court has said:

7.  The Constitution forbids all deprivations of property which occur "without due process of Law." The word "without," as used in this 18th and 19th Century Constitutional documents, means "Outside; beyond; in excess of." Black's Law Dictionary. Literally, the Constitution forbids all governmental deprivations of life, liberty or property outside of Due Process of Law. The United States Supreme Court has explained this right as follows:

8. The Court has also explicitly identified the "Law" and authority which State officials must "keep within" as being the statutes and organic Laws established by the People in each state:

9.  According to the plain text and meaning of the Fourteenth Amendment's Due Process of Law Clause, only deprivations which occur within a "Process of Law" established by the People are constitutional.  Governmental deprivations and invasions of private property which occur outside any "Process of Law" established by People of the State are absolutely prohibited by the Federal Constitution.  By the Constitution, no "power is given, but is absolutely prohibited, both to the executive and the legislative, to deprive anyone of life, liberty, or property without due process of law...." United States v. Lee, 106 U.S. 196, 220 (1882); Tindale v. Wesley, 167 U.S. 204, 217 (1897).

10.  Lord Coke instructed that "[e]very oppression against law, by colour of any usurped authority is a kinde of destruction [prohibited by Magna Charta], for quando prohibetur, prohibetur et omne per quod devenitur ad illud." (2 Coke, Institutes 53).  The American Colonists established this principle in their earliest Constitutions, such as the Massachusetts Bay Colony's 1641 Body of Liberties which paraphrased this provision of Magna Charta as follows:

While "Law" is created only by the assertion of legislative power, not every conceivable Legislative Act or assertion of power is "Law," within the meaning of the Law Clauses of the Constitution.  To be "Law," it must be a "general law" establishing a "general rule" because the definition or "Law" requires that "the rights of all persons must rest upon the same rule under similar circumstances." Louisville Gas Co. v. Coleman, 227 US 32, 37, 38 (1928).  "[A]ny legislative act which takes away the life, liberty or property of a particular named or easily ascertainable person or group of persons" is not a "general law," and therefore is not "Law" within the meaning of the Law Clauses.  Cummings v. Missouri 71 U.S. (4 Wall.) 277 (1867); Hurtado v. California, 110 U.S. 516, 535-36 (1884).  A Legislative Act or statute which is "vague" or "uncertain" is not an "express law" establishing a "rule" capable of being "known" and uniformly applied to all persons similarly situated, and is therefore not "Law." See, e.g, Jordan v. DeGeorge, 341 U.S. 223 (1951); Cramp v. Board of Public Instruction, 368 U.S. 278 (1961).  The Courts have established many other doctrines purporting to limit the exercise of legislative power, such as the so-called "incorporation doctrine," and doctrines of so-called "Substantive Due Process" and "Procedural Due Process."  These and other judicially developed limitations on the exercise of legislative power were developed to supplement the ancient and fundamental right of citizens to enjoy the protection of the laws as written by the People's representatives in the legislative branch.  Congress has enacted a statute to enable citizens to demand the Federal and State courts to enforce all these constitutional rights against State officials.  42 U.S.C. Sections 1983, 1985, and 1986.  

11.  The American prohibition and the remedy against undue deprivations and interference with private rights by State officials acting under color of law is contained in the first section of the Fourteenth Amendment and in 42 U.S.C. § 1983 (which enacted as the first section of "An Act to Enforce the Provisions of the Fourteenth Amendment" approved April 20, 1871):

Another "vital component of any scheme for vindicating cherished constitutional guarantees" is the imposition of criminal punishment, which Congress has prescribed, for the "willful" violation of "rights ... protected by the Constitution or laws of the United States" by deviant government officials:

This Federal criminal statute provides that "if bodily injury results from the acts committed," the penalty increases to as much as 10 years in prison, plus a fine.  It adds that "if death results from the acts committed ... or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill," the maximum penalty is life in prison or death.  This statute, on its face, would be useful to deter or punish unlawful deprivations of life, liberty or property by wilfully deviant governmental agents.  However, a statute is only useful if it is enforced.  Currently, this statute is not well enforced by the agencies under the control of the President of the United States.

By Contrast, the Department of Justice vigorously enforces an "Asset Forfeiture Program" against citizens who ingest or traffic certain substances and "ensure[s] its integrity" in order to "maximize its full law enforcement potential." USDOJ, Legal Activities 1995-1996. The poison of lawlessness in government is far more dangerous than any controlled substance.  Perhaps Congress, pursuant to its power under section 5 of the Fourteenth Amendment, should legislate a civil and administrative Forfeiture statute which is enforcible against governments and officials who "under color of any law, ... subjects any person ... to the deprivation of any rights ... protected by the Constitution or laws of the United States."  Let deviant public officials forfeit their salaries, weapons, benefits, honors and offices.  Perhaps that potential revenue source would motivate the Department of Justice to "maximize [the] full law enforcement potential" of the Civil Rights Acts.  Also, Congress should expand the statutory "jurisdiction" of all agencies capable of investigating or prosecuting unlawful acts and deprivations committed by governmental agents.

The consequence of the failure of the President, or the Courts, to enforce the fundamental Constitutional rights of citizens to life, liberty and property, is that our most fundamental principle, that "governments are instituted among men" to "secure" their rights to "life, liberty, and the pursuit of happiness [e.g., property]" is more frequently disregarded, and it may seem to many that our local, state and federal governments have instead "become[] destructive of these ends."  Cf. Declaration of Independence.  History teaches that the ultimate consequence of the failure of our government agents to abide by the Law of the Land and to obey and compel obedience to our Constitution, may include the destruction of the Government and The People of the United States. Like Abraham Lincoln warned decades before the first American Civil War, Mr. Justice Brandeis, of the US Supreme Court, repeated for the People and Judges of this generation, that:

Lawlessness in government today poses the same grave threat to "Government of the People, By the People, For the People," that it did at the time of the adoption of the Law Clauses of the Fourteenth Amendment following the Civil War (1868).

One of the most serious threats to the Peace and Security of this Nation and a barrier to the proper observance of Law and the proper enforcement of these Constitutional rights, is the failure of many lawyers, law professors, and Judges to understand and teach that the Constitution forbids the agents of the government to intentionally deprive a person of Life, Liberty or Property without authority of Law.  Many of our judges incompetently suppose that an undue (illegal) and intentional deprivation of liberty or property is nevertheless constitutionally permissible if "compensation," such as by a subsequent civil "damages" remedy, may somehow be available to the victim, or his heirs. This supposition does great violence to the original and express principles of the Constitution, and essentially nullifies the Constitutional right declared therein, and relieves the Executive and Administrative officers of our government from the obligations solomnly undertaken by their "Oath or Affirmation, to support this Constitution."  (US Constitution Article VI) Officers support the Constitution by "keeping within" their lawful authority, and by refraining from depriving persons of Life, Liberty or Property without authority of Law.  Conversely, officers violate the Constitution, and their Oath or Affirmation, by depriving persons of Life, Liberty, or Property without authority of Law.  The Constitution prescribes Rules of Conduct for the governmental agents of the People.  The Constitution established a Government of Laws, and forbids the establishment of a Government of Men, let alone of Thieves and Murderers and Tyrants.  The existence of a remedy for a deviation from the prescribed Rule of Conduct does not negate an officer's continuing duty to abide by that rule.  The Constitution commands to the official: "Thou shalt not steal" a person's property under color of law or pretense of authority.  The fact that a person might have some lawsuit or civil remedy for damages, if his property is stolen or withheld, does not warrant that theft, nor should the existence on paper of one remedy give the governmental thief immunity from other remedies, such as criminal prosecution, or the citizen's remedies of self-defense, or civil disobedience or even revolution. See also, Declaration of Independence. The fact that a judicial remedy may exist on paper for an officer's violation of his legal duty, does not dispense with the officer's own continuing obligation to comply with that known legal duty.  Marbury v. Madison, 5 US (1 Cranch) 137 (1803); At least, not in "a Government of Law." Yick Wo v. Hopkins, 118 US 356 (1886).

The widespread repudiation of the right of citizens to hold their "property" free of undue (unlawful) deprivation might be caused in part by an incompetent confusion of the "Law Clause" with the "Takings/Just Compensation Clause," both found in close proximity in the text of the Fifth Amendment.  Examples of such confusion of these two distinct provisions may be found in reversed decisions, and other decisions, by a Constitutionally illiterate Federal District Court Judge named Scullin.

But more than a few of our Judges also suppose that not ONLY illegal intentional deprivations of PROPERTY, but also illegal intentional deprivations Liberty and perhaps Life, are consistent with our form of government (Constitution) if a civil "damages" remedy may be available on paper to the victim or his heirs.  This pernicious doctrine confuses the Right, with one of the Remedies provided for its violation.  In the original expression of the Due Process of Law - Law of the Land, guarantee in Magna Charta, the substantive right is first declared, then its observance secured further by assurances of law abiding officials, and then remedies for its enforcement "if" violated or " are separately stated as including both judicial remedies and the right of revolution.  In our Constitution, particularly the Fourteenth Amendment, the right is declared, but a judicial remedy for its violation is left to be inferred, but it is expressly declared to be the duty of Congress "to enforce, by appropriate legislation, the provisions of this article", which Congress initially attempted by do by enacting "An Act to Enforce the Provisions of the Fourteenth Amendment" in 1871.

The prohibitions against undue deprivations of Life, Liberty, and Property must not be confused with the distinct and additional guarantee of the Fifth Amendment that Just Compensation shall be paid where private property shall have been lawfully Taken, pursuant to Due Process of Law, for "public use."

"[T]he prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference." Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (citing Lynch v. Household Finance Corp., 405 U.S. 538). By the Due Process of Law Clauses of the Constitution, State and Federal Officials are "absolutely prohibited ... to deprive anyone of life, liberty, or property without due process of law." United States v. Lee, 106 U.S. 196, 220 (1882); Tindale v. Wesley, 167 U.S. 204, 217 (1897). "The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals ... as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government." Hurtado v. California, 110 U.S. 516, 535-36 (1884).  Unlike the Due Process of Law Clauses, which absolutely prohibit all arbitrary and unlawful deprivations of life, liberty, and property, it is said that the Takings/Just Compensation Clause of the Fifth Amendment "is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking."  First English Evangelical Lutheran Church of Glendale, v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378 (1987).

12.  The citizen's right to hold his life and property, "under the protection of the Law," is the most fundamental of all civil rights. The Supreme Court has recognized that

13.  The written documents of the English Constitution also instructed that precautions must be taken to protect free men from unreasonable risks of erroneous deprivation.  In accordance with the government's duty to safeguard life, property and liberty from destruction by lawless rulers, Magna Charta commanded that:

14.  This command, like the Law of the Land prohibition itself, was adopted by the draftsmen of Magna Charta from the Bible.  Modern States attempt to meet this obligation of having only officials knowledgeable of the laws, by assigning Officers of the Court, such as Attorneys General, and Municipal Attorneys, to the various agencies of the State, to help them "keep within" their lawful authority. The Due Process of Law "vagueness doctrine" is an extension of this knowledge-of-law principle of Magna Charta and is designed to reduce the "risk of erroneous deprivations "caused by purported laws that are too vague and indefinite for public officials to "know" and to "keep within."  Erroneous and unequal deprivations are just as likely to result from vague laws as from officials who lack knowledge of the clearly defined laws or who lack a disposition to keep within the authority conferred by them.

15.  The idea that the citizen must be protected from unreasonable risks of erroneous deprivation gave Anglo-American jurists the authority to create the concept of "Procedural" rights (notice, meaningful opportunity to be heard) which protect the individual not only from actual deprivations contrary to the Law of the Land, but from arbitrary procedures likely to result in erroneous deprivations as well; hence the words "Due Process" of Law.

16.  History teaches that disregard by the government of the citizen's legal "right to enjoy what is his," under the Laws is the surest path to the destruction of the government itself, at the hands of God, or at the hands of the governed.  American History confirms this.

17.  "The 'rights of Englishmen' in England were given to the [American] colonists in the earliest of the charters for colonization. ... Under this blanket provision the colonists claimed the protection of Magna Charta." ( Rodney L. Mott, colonial phrasing, in Due Process of Law §4, 8-9 (Da Cappo Press, New York, 1973))  The Colonists complained in the Declaration of Independence that a later King had plotted to establish "an Arbitrary government" here by "abolishing the free system of English Laws," and to introduce an "absolute rule into these Colonies" by "taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government."

Samuel Adams reputedly said: "Now what liberty is this when property can be taken without permission."

18.  The Supreme Court of the United States was certainly correct to recognize that the

19.  When the American People began to frame a new government for the American Colonies, they equated the phrase "Due Process of Law" with "The Consent of the Governed" because they believed that all government and Law must be derived from authority conferred by consent of the governed.  Government exists to secure life, property, and liberty, and must never deprive any member of the governed of any such right without the consent of the governed.  The declaration of the First Continental Congress, in 1774, asserted the fundamental right of every American to hold his life, liberty and property unless deprived thereof by his own consent duly enacted in Law:

20.  When this fundamental right was disregarded by the King who sent "swarms of officers to harass our people," they next declared, in the Declaration of Independence, that any ruler who claimed a right to deprive a person of his life, liberty or property without the consent of the governed as expressed in Laws duly enacted by their representatives, is a "Tyrant" that must be overthrown.  The Right of Revolution which they claimed was foreshadowed in Magna Charta itself:

21.  These historic guarantees of life, property, and liberty secured by law, "enshrined in the history and the basic constitutional documents of the English speaking peoples," and secured further by National collective vigilance against lawless governmental action, was the model for the Fourteenth Amendment to the Constitution of the United States which ordains that:

22.  Congress initially fulfilled its duty to secure life, property and liberty against undue governmental interference and deprivation in the States by enacting the Act of Congress approved April 20, 1871, entitled "An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other purposes" and so much of the same Act as is now embodied and codified in Sections 1983, 1985, and 1986 of Title 42 of the UNITED STATES CODE.  Despite this history, the teachings of many jurists and teachers of the law have seriously eroded the fundamental rights of free citizens to hold what is their own, but it remains the duty of the State and National Courts, and of Congress, and the President, to protect the citizens of this Country from deprivations not authorized by "the law of the land," and to restore citizens to the full enjoyment of those possessions when such are deprived or withheld by public officials "transcending the limits of their lawful authority." Hurtado v. California, 110 U.S. 516, 535-36 (1884).

23.  American Citizens living at the end of the 20th Century should not have to live in fear that they will be deprived of their property, or life, or liberty by lawless public officials.  Public officials have a duty to know the Law and to know the limits of their lawful authority and "keep within" that authority.  This is the most basic duty of civilized government. This a duty which is too frequently violated by local, state, and Federal officials.

24.  Absolute lawlessness prevails in this Land on a scale which would have justified the drafting of Magna Charta, and private property is being invaded at the mere whim of men who have no regard for Law, and therefore, no regard for the Consent of the Governed.  Men in office who covet the property of others, and who attempt to make it available for their own private use and benefit, and who deliberately evade the requirements of Law, including its requirement for payment of Just Compensation for property to be taken for bona fide Public Use, go unrestrained by many of our Courts because law schools fail to provide proper education in Constitutional rights, and produce lawyers, law professors, and Judges who are not competent to defend our rights.  All contrary to the fundamental promise of peace and security found in Magna Charta, the Bill of Rights, and in the Fourteenth Amendment.  Enough is enough.  This kind of lawlessness, involving disregard for written Laws, has overtaken every part of our government.  Our Laws, established by the Consent of the Governed, are nullified by the mere Will of Men in power who, contrary to their Oaths, do not know them, or who are not disposed to abide by them.  Life, Property and Liberty are no longer secure.  A remedy worthy of Magna Charta and the Declaration of Independence must be prosecuted by the People, and by their representatives.

January 27, 1999.  rev. April 4, 1999.

Respectfully Submitted

Mark Ferran, BSEE scl, JD mcl.

114 Morton Ave

Albany, New York 12202-1409

Counselier@aol.com

Current website:http://members.aol.com/Counselier

An updated edition of this essay may be found at the above site, or the ACTA site: http://www.givemeliberty.org

P.S.

Notes about Lawless Officials in Rensselaer County, New York.

Lawless Officials in the Town of GRAFTON, Rensselaer County, NY

25.  The author of this article first encountered shameless lawlessness and abuse of power in Rensselaer County, NY, when the Town of Grafton declared that my family's lands, about 300 acres, which had been assessed and taxed as my family's wholly private property for decades, were (suddenly) traversed by a public highway.  Our private Lands and the impassible roadway on it were POSTED for decades.  As State Supreme Court Cholakis later determined, it was wholly private property, and there is no public highway across it.  In the 1970s after an officer of the Grafton Mountain Snowmobile Club became the Town Assessor, he called my father Rocco Ferran on behalf of the snowmobile club and asked for "permission" to snowmobile across this land for free, adding that my father should remember that he was the "assessor"  and that he was in a position to abuse his powers as assessor unless my father allowed our property to be used gratuitously by scores of strangers on snowmobiles.  My father (who originally coined the expression "Democracy is Not a Spectator Sport" during his campaign for Congress in the 1970s) knew the law, knew his rights, and refused, and informed the Town Board that this land was private property.  As State Supreme Court Cholakis later determined, the Town had not maintained the ancient road across our lands for at least 80 years and it had been "impassable" to passenger cars for decades.  Highway Law § 205 clearly states that any old public highway easement which is not significantly "used or traveled" for 6 years automatically ceases to be a public highway, without any official or declaratory action by the Town.  It was well settled that Highway Law § 205 is self executing and does not require official action of the Town.  It would have taken between fifteen seconds and fifteen minutes for the Town officials, or the Town Attorney, to read that rule of Law in McKinney's NY Statutes.  My father knew the law in 1978, and knew his family was paying taxes on the land in that road,because the assessor knew it was private property, not a public highway. Yet, the Town attorney went ahead and expressly told the Grafton Mountain Snowmobile Club, and motorcyclists and lumber harvesters in the Town, that the road on our land was "open" for their use, on the false pretense that it had not been "abandoned" because the Town had never recorded a certificate certifying that it had been abandoned.  The Town further declared that the road was "open to the public," meaning snowmobilers, motorcycles and lumber harvesters, despite the fact that it was impassable for use by the general public, and the Town has no honest intention to improve it.  When my father and I could no longer enforce our legal rights in the local Justice Court, we enforced our legal property rights by self-help by excluding trespassers from that road.  When the same officer of the Grafton Mountain Snowmobile Club became a member of the Town Board, the Town sued my father at the request of motorcyclists and snowmobilers, even while the Town continued to refuse to repair or maintain the supposedly public road.  State Supreme Court Judge Cholakis read the Highway Law, and immediately declared the Town's claims to the road were "invalid" as a matter of law, and held that there was not even an arguable factual basis supporting the Town's claim to the road sufficient to warrant a trial.  The Judge attempted to restore my family to our property rights by issuing an injunction restraining the Town, and "all persons claiming under" the Town from entering upon the Ferran's land.  The Order further directed the Town to erect signs indicating the road is private.  The Town disobeyed the terms of the Court's Order for many years.  The Town Board still wanted this road to be open for snowmobilers and lumber harvesters and purported to appeal the Order and the Injunction, in order to automatically Stay its execution against the Town and "persons claiming under" the Town.  Then my father was killed, by a heart attack shortly after the Town declared its intention to appeal the Supreme Court's Order.  The Town Board later voted to continue the appeal for three years without ever intending to perfect its appeal.  During that malicious appeal, we were deprived of the protection of our injunction, and a timber harvester entered onto the road on our land, claiming under the Town, and irreparably damaged the road and our land, bridges, and trees. It took over ten years to be free of patently lawless claims by that Town.  Next, the Town attempted to landlock our property by depriving us of our right of access over the real public highways leading to our private lands.  During a subsequent inquest, certain Grafton Town officials claimed they had have never read the Highway Law of the State, and others, who claimed they had read the law, demonstrated that they had no actual knowledge of the clearly established and relevant legal rules.    A controversy which should have been over in 1978 within 15 minutes of picking up a law book, instead took years of painful litigation, which killed my father, during which persons unlawfully entered plaintiffs' land claiming under the Town, in violation of the terms of the Court's order.  After my father died, I began to study law, at the age of 16, when my mother brought me to the New York State Library to read McKinney's statutes with her. Later, my family sought injunctions and damages against these Grafton Town officials in Federal Court, but there we were subjected to a Federal Judge who is so ignorant and unknowing of the Law of the Land, that he does not even know that there is a distinct Due Process of Law prohibition in the Federal Constitution.

Lawless Officials in the Town of POESTENKILL, Rensselaer County, NY

Similarly, in the rural Town of Poestenkill, (in the same County) the Town Highway Superintendent went onto a parcel of private land owned by my late father in the Town, and suddenly declared unlawfully that the dead-end private single-lane driveway on the edge of that parcel was a "public highway" based upon the absurd and false premise that it had "been used by the public as a highway."  At all times previously, this land and driveway had  only been used by one resident as a private deed easement, for ingress and egress to the garage it terminated at, and had been taxed by this Town and assessed to my father as wholly private property.  Despite the obvious private nature of this roadway, the Highway Superintendent proceeded to unlawfully pave and WIDEN this narrow private driveway, consuming a portion of our adjacent private lands without consent of the owner.  Many years later, the Town purported to name this private driveway "Henderson Lane."  My mother and I sued this Highway Superintendent and other Town Officials in Federal Court, claiming that they had in this manner deprived us of family property without due process of Law.  On March 18, 1999, the Federal District Court decided:  "Notwithstanding defendant's claim that [this driveway on the edge of plaintiffs' land] is a public user highway, this Court finds that the road, running adjacent to Plaintiff's property, is the private property of Plaintiffs Mark and Nadia Ferran.  Defendants to the present day, however, claim that ... Henderson Way is a public user highway.  At some time in 1985, without Plaintiffs' approval, Henderson Way was ... paved by the Town.  During the 1985 []paving, the Town paved some additional fifteen feet of Plaintiffs' land beyond the previously paved road. ... The alleged act of depriving the Plaintiffs of their property without due process accrued as of that time." 

Our case against the Town of Poestenkill proceeded upon the sound legal theory that:

The Town and its Highway Superintendent physically violated and interfered with our private property rights under color and pretense of Highway Law § 189, which states in pertinent part that "All lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway."  Their claims to and entries upon our narrow dead-end private driveway, not shown on any map, made under pretense of this statute, deviated from the clearly established meaning and limits of the statute.

The Federal District Court determined that Town of Poestenkill's claims that our dead-end private driveway was a "public highway" was invalid and contrary to Law, and that its entries and its summary appropriation of additional adjacent lands were not authorized by the Law of the Land.  Thus, we were in fact deprived of our property, by government agents acting outside of due process of law.  Before deciding to sue these officials, my mother complained of this obvious illegality to the Town Supervisor, and asked him to make the Town leave her property alone.  She said to him: "You are not supposed to take my property without due process of law."  His response to her objection is typical of the mentality of virtually every government official in the County of Rensselaer, N Y, and other places. He replied:

Because of this lawless attitude, with an actual contempt for our most basic Constitutional rights, the Town defendants refused to withdraw from our property, even though they knew or should have known that they had no lawful authority to enter or remain there, and therefore we were forced to commence a lawsuit to try to be rid of them.

Similarly, in 1990, this same Poestenkill Town Highway Superintendent ordered his highwaymen to secretly enter plaintiff's other private lands abutting on an old two-lane public highway, named Cropsey Road, with heavy machinery to unlawfully divert a stream onto and across my mother's adjacent land.  Her land was enclosed by an ancient stone wall fence, and contained a cottage where my parents lived, and my mother gardened, before I was born.  The Town's highwaymen came with heavy machinery, without our knowledge, and unlawfully tore open and destroyed a ten foot section of the stone wall fence with heavy machinery, and then dug a 40 foot long trench three feet deep and over three feet wide across our yard until they reached the other side of the property, where they tore an even larger hole into the tall stone wall fence on that side.  They also installed a culvert under the old roadway to divert water from a stream on the other side of the road onto and across our land.  Then, when my mother demanded in writing that the Town must pay damages for this permanent physical appropriation of her property (Highway Law § 148) they acted like common thieves, and denied having anything to do with the culvert, excavations and damage of her land and fences.  Under the Law of the Land in the State of New York, the Highway Superintendent had no lawful authority to enter of do these things without first obtaining the consent of the owners, or  having a specific authorization from the Town Board accompanied by their commitment to pay all damages sustained by the entry.  (Highway Law Sec. 148).  This highway superintendent and his highwaymen had neither permission, warrant, nor authority to enter and damage this land as they did. The Federal District Court decided: "As far as Plaintiff Nadia Ferran's second parcel of land at issue, the Cropsey Road property, it is apparent that during the summer of 1990 a culvert running underneath the public highway adjacent to plaintiff's land was in fact constructed ... which ... resulted in damage to a section of the stone fence located on one side of the Cropsey Road Property.  In addition, Plaintiffs have further produced evidence that a three foot wide, approximately three feet deep, and thirtyseven feet long channel or trench was constructed through Plaintiff Nadia Ferran's land from the end of the culvert at issue to the beginning of another stone fence on Plaintiff's land.  At the location where the channel or trench ends, a ten feet by four feet section of a second stone fence has been displayed and damaged.  Defendants deny responsibility for the Cropsey Road property culvert, channel or trench, and damage to both stone fences.  ...  This Court finds that Defendants were in fact responsible ...."  The Town defendants made no attempt to prove that they had obtained lawful authority by complying with the conditions and regulations prescribed by Highway Law sections 147 and 148 before entering and destroying and depriving her of her property.  Instead they acted stealthily, and unlawfully, like common thieves.  Therefore, these government agents clearly deviated from or acted outside of Due Process of Law because they failed or refused to "keep within the authority conferred, and observe every regulation which the act makes for the protection or in the interest of the property owner."  Chicago, Burlington &c. R'd v. Chicago, 166 U.S. 226, 241 (1896).  These defendants certainly did not keep within any "process due according to the law of the land."

Despite the clear facts and the Court's incontrovertible findings that these defendants had deprived us of our property outside of any process of Law, and even though the District Court had determined that the Town's entries, appropriations, and claims to our private property were unlawful and outside of and beyond any law purporting to legalize deprivations, the District Court has failed and refused to vindicate and enforce our Constitutional Right to enjoy and possess our property without undue governmental interference.  After the District Court determined that the defendants had deprived us of our property outside of any process of law, the Court absurdly purported to "dismiss" our case on the grossly erroneous grounds that our constitutional rights were not violated.  The Trial Court's decision strangely failed to cite or take notice of the controlling precedent in Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir. 1993).  Instead, the District Court cites an unpublished opinion of the other local District Judge,Scullin, whose persistent confusion of the rights of "Due Process" with "Just Compensation" was condemned and repudiated by the Federal Court of Appeals in Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir 1993).  I am convinced that the busy Trial Court did not read the memorandum of law which I submitted at the close of the Trial in the Poestenkill case.  The District Court concluded:

The most obvious problem with this Trial Court's descision is that we did not assert any Fifth Amendment "Takings/Just Compensation" claim at trial- because it was clear that the defendants acted wholly without lawful authority, in violation of our distinct Constitutional right declared by the Due Process of Law Clause.  We demanded, and proved our entitlement to an injunction restraining the Town defendants from continuing to enter, control, or claim any right in, our private property.  We claimed, AND PROVED, two "Deprivations" of "Property" which occurred outside of the "due process of law" - not merely two lawful and proper "Takings" of our Property for Public Use for which just "Compensation" would be a sufficient remedy.  The District Court's denial of such relief on such erroneous grounds is a reversible error of Law, if the Constitution will be enforced. We are now seeking to have the District Court reconsider its mistake of Law, or we will likely have to appeal for reversal on the same exact issues and matters of Law that we prevailed upon in Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir 1993).  The principle to be vindicated is that government agents who purport to carry out their functions by committing intentional and unlawful deprivations of property (or of life and liberty) are subject to punishment by Acts of Congress, and are subject to the jurisdiction and condemnation and injunctions of the Federal Courts, regardless of the existence of any "State procedures" which might be available theoretically for obtaining "damages" or mere "Compensation."    If this is not the case, then the ancient rights declared in the Fourteenth Amendment, and in the Bill of Rights, are now reduced to a mere farce, Congress is impotent to protect us, and we are now subject to the absolute rule of lawless rulers, and we have no common defense other than the force of arms.  The Town of Grafton and Town Poestenkill are not the only local governments who employ highway officers and other officials who are disposed to unlawfully and repeatedly violate the property rights of citizens.  The Town of Nassau now has the dishonor of being internationally notorious for employing officials who violate the Constitutional rights of persons who own property abutting supposed public highways.

Lawless Officials in the Town of NASSAU, Rensselaer County, NY

26.  In the Town of Nassau, Rensselaer County, NY, an individual living near the Ferrans' camp in a small subdivision on Burden Lake became Town Supervisor.  At this Town Supervisor's request, the County Highway crew entered upon my family's land and put in a trench 75 feet long and cut down trees on our land without our consent and without any lawful authority and delivered this wood to the home of this Town Supervisor and his friends for their personal consumption!  A friend of this Town Supervisor desired to use another parcel of plaintiff's property in wholly inappropriate ways, (for burning trash, storing firewood) and for cutting trees without plaintiffs' consent.  My mother obtained an Order of Protection from the Nassau Town Justice against him restraining him from re-entering and committing these trespassory acts.  Immediately thereafter, the Town Supervisor induced the Town Attorney to declare that the plaintiff's entire parcel including grass, and old trees, and the land under the woodpile and under the burning barrel was "Town Property" and "Public Domain" under the pretense that it had become a "public highway" by operation of Highway Law § 189.  My mother protested that the land she claimed was being misused by her neighbor had never been "used by the public as a highway for ten years" (nor at any time) as is expressly required by Highway Law § 189.  Then the Town decided to interlope into the wholly private matters concerning the source of our legal title to the land my family had been paying taxes on for over thirty years.  The local Town Justice and local Police ignored the written (Highway) Law and applied the Town's "Town Property" Policy Declaration as if it were the Law of the Land.  We were practically deprived of the Order of Protection, and of all other protection under of the Law.  Consequently, when my mother discovered this friend of the Supervisor cutting down trees on land she is taxed and assessed as the owner of, and she objected by calling the Troopers, she was brutally stoned by this man and his son, and then beaten to the ground and kicked till she bled from her face.  Because of the Town Supervisor's interference on behalf of his friends and neighbors, these criminals were never even prosecuted for their barbaric acts and larcenies.  Recently, almost ten years after the Town of Nassau had first declared our land to be "public domain," the Town admitted to the State Supreme Court in a related civil action that the Town and others were without any reasonable basis in fact to claim that the land under the trees, wood, and grass, had "been used by the public as a highway." Just previously, but after almost 8 years of interfering with this land, the Town admitted that it had no lawful claim to the portion of the land in question, and that its Highway Superintendent's 1988 letter was false in fact.   The same Federal Judge, Scullin, involved in the Grafton matter ignorantly said that we were not entitled to the "equal protection of the laws" of the state, because we were not members of a "minority" or other limited group.  He was Reversed! Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir 1993)  He also denied that we had any distinct right under the constitution to hold any claim to property under the protection of the Law.  The Federal Court of Appeals reversed him on that point as well, and held that these governmental "interferences with property rights," as alleged in the Federal Complaint in Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir 1993) constituted a deviation from the Due Process of the Law and a denial of the Equal Protection of the Laws.  Because the Federal Judge refused to issue an injunction restraining the Town and persons claiming under them from further entries or mutilation of this land, the Ferrans were forced to commence second action in State Supreme Court against the Town, for Trespass and Slander of Title. (While the Federal Lawsuit was pending against him, the Town Highway Superintendent, Meizinger, further demonstrated his arrogance and his lack of respect for (fear of) the Law and the Courts, by returning to our property and widening the narrow roadway without consent and without due process of Highway Law § 173.)  After the State Trial Court ignorantly adopted the invalid (and reversed) holdings of the Federal Judge, the Appellate Division reversed him and held that the Town's claim of an interest in the land was a "Slander of Title" and its efforts to "widen" the road without due process of Highway Law § 173 constituted "trespass." (i.e., unlawful entry). Ferran v. Town of Nassau, sub nom.  Ferran v. Belawa, 241 A.D.2d 841, 660 N.Y.S.2d 488 (3rd. Dept. 1997) The Federal case is now in the difficult Discovery phase in the Federal District Court.  In October of 1998, I made a motion in the State Supreme Court for summary judgment against the Town of Nassau and its Highway Superintendent, demanding relief including "an INJUNCTION restraining the Town of Nassau from 'widening' any alleged public highway without the consent of the owners of the adjacent lands [unless by due process of the Highway Law]"  According to the Civil Practice Laws and Rules of the State of New York, "An order determining a motion ... shall be made within sixty days, after the motion is submitted for decision."  (R 2219).  According to this rule, which is routinely violated by state judges, an order deciding our pending motion was due on or about January 20, 1999.  The intervening holidays may have excused the Judge's initial failure to comply with that rule, but as of March 24, 1999, there has been no order determining our pending motion.  The consequences of that Judge's failure to timely grant that requested injunction against the lawless agents of this Town have become a matter of international interest.

The Gun-toting Grandma, in Nassau, NY.

Hildegard von Waldenburg, weffen oma

In February of 1999, because the Federal and State Judges refused and delayed to grant injunctions restraining the Town of Nassau Town's Highway Superintendent from committing further unlawful deprivation and destruction of private property by carrying out his demonstrated intentions to "widen" narrow roads without consent of the abutting land owners and without due process of Highway Law § 173 (eminent domain), the same highway superintendent sent his highwaymen to "widen" a narrow old road passing through the lands of neighbors in the Town of Nassau, including one named Hildegard von Waldenburg (Hildegardg@aol.com). Hildegard is a 79 year old german immigrant farmer who survived and escaped the brutal and despotic Russian occupation of Germany after World War II.  More than 30 years ago Hildegard and her husband Fritz bought an old farm on a quaint country road called "Cold Water Tavern Road" (# 142) in the Town of Nassau (NY 12062).  This ancient public road is a narrow dirt road, (16 feet wide, including shoulders) bounded on both sides by ancient stone wall fences and stately centuries-old hickory, oak, maple and pine trees.  The ancient fences and trees on Hildegard's property along road were features which gave her property its charm, reveal its history, and established clear boundaries giving notice to anyone disposed to trespass.  The stately trees especially appealed to Hildegard and Fritz's artistic values.  Years ago an opportunistic local timber thief, named Bruce Sayers, entered her land and Hildegard caught him trespassing, cutting and stealing her huge Oak trees.  The local police and District Attorneys refused to prosecute him for his criminal trespass and larceny.  And that thief knew ahead of time that, notwithstanding the laws, he would not be prosecuted by the local authorities, which is why he decided to enter her property and cut her trees.  Out of necessity, Hildegard grabbed her husband's shotgun, unloaded it, and then confronted this thief cutting trees on her land and ordered him to leave, threatening to shoot him if he did not.  He left her property, and went on his way, only to go on to steal trees from the lands of others (including this writer). Despite the evidence left lying on the ground, no charges were filed nor any arrests made by the police. Hildegard learned that she was on her own, just as she was back when the Russian soldiers came to rape her in occupied Germany.

In February 1999, a new set of thieves came to cut Hildegard's trees.  But this time, the thieves were acting under color of law and pretense of authority.  They were the highwaymen of the Town of Nassau, under specific orders from the (defendant) Nassau Town Highway Superintendent, to "widen" the narrow old public road to a width of "49.5" feet by cutting down all the trees, and by removing the old "stone fences" on abutting private lands within 25 feet of the center line of the narrow dirt road.  They had no lawful authority to do this.  Van Allen v. Town of Kinderhook, 47 Misc.2d 955, 960, 263 N. Y.S.2d 491, 497 (1965).  The very same actions which these Town highwaymen committed and threatened to commit have been held to constitute "criminal mischief."  People v. Misevis, 138 Misc.2d 1097, 526 N.Y.S.2d 387 (1988). The Highway Superintendent has admitted that he knew that the Town had "no deed" nor any other written warrant to enter and damage the wholly private lands abutting the narrow public roadway.  Nevertheless, "Highway Superintendent Joe Meizinger said trees, brush and old stone walls must be removed." (Albany Times Union, February 23, 1999 p.B5, by Michele Morgan Bolton. ) Nor did the Town perform any Environmental Impact study to determine the propriety of destroying the scenic quality of this country road, and increasing the volume and speed of traffic on it.  So, the Highway Superintendent decided to send his highwaymen to do these destructive things with stealth, without any prior notice, during business hours while most resident property owners are expected to be away from their homes, and therefore, unable to personally guard and defend their property.  (Some of Hildegard's neighbors objected later, when they returned home from work and discovered that their "trees were cut well into [their] property.")  But, being retired on her property, Hildegard caught them in the act when another retired neighbor on the road suddenly called and warned her that the Town highwaymen were coming immediately to cut the trees along the road (on her land).  Just before the highwaymen wielding chain saws were about to do irreversible damage to her beautiful trees and property, she stopped them in their tracks, by the only means by which she could have stopped them at that time.  She bore arms against them and threatened them, in order to cause them to cease and desist their threatened deprivation of her property.  The case received national and international media attention when Hildegard was arrested by the local police because she picked up her husband's shotgun, unloaded it, and went to the place on her property where the highwaymen were about to trespass and cut her trees, pointed the unloaded shotgun and said to the lawless highwaymen: No!  "Stop!  Or I will shoot you!"  They stopped.  They stopped, not because they were suddenly overcome with remorse for committing their crimes against the landowners, but because they were concerned for their own personal safety when threatened by a landowner with a gun, defending her property.  Then the State Police came.  But, instead of arresting the persons engaged in criminal mischief, they arrested and charged HER, the landowner, with "menacing", which is what she did in fact, but LAWFULLY.  She was released into her own custody until her trial in April 1999.  Her trees still stand, as of this writing, but the Highway Superintendent said on the news that he and his highwaymen will be back to finish cutting down her trees and removing her stone fences just as soon as she is restrained, (i.e., imprisoned), long enough to allow them to (unlawfully) enter and deprive her of her private property without fear of her exercising her supposed right to "bear arms" against them, in defense of her property.

 The legal defense raised by her defense attorney (Terry Kindlon of Albany, NY, acting pro bono publico, i.e., "for the good of the public") is that under New York State law, such a defensive act, short of an actual use of "deadly physical force," is lawful and "Justified" when it is reasonably necessary for "defense of property, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest."  NY Penal Law § 35.10.  NY Penal Law § 35.20(1,2). Kindlon is quoted as saying that apparently the Town only has "prescriptive" rights in the already existing roadway under Highway Law § 189, and therefore that "she may have had every right to protect her property with a gun."  (Albany Times Union, March 11, 1999).

This defense of "Justification" has roots in the Constitution and Common Law of England and of the State of New York.

Sir William Blackstone's written COMMENTARIES on the Law of England informed pre-revolutionary Americans of the constitutional rights they "enjoyed as Englishmen" under the original colonial "Charters" which the King in 1776 was "taking away" in order to "alter[] fundamentally the forms of our governments," and to "abolish[] the free system of English laws" here and in order to "introduc[e] absolute rule into these colonies."  (Declaration of Independence)  Blackstone expounded the "Absolute rights" of individuals to hold their lives and property, under protection of law, and the derivative right to bear arms for defense thereof, and the relationship between these rights, as follows:

The right of "good subjects" to keep and bear arms for defense of their lives and property and civil liberty was reaffirmed in the 1689 English Bill of Rights, which was the product of a "bloodless revolution" in England when "King James the Second, by the assistance of divers evil counselors, judges, and ministers employed by him, did endeavour to subvert ... the laws and liberties of this kingdom."  It was the intention of our forefathers, and the Framers of the US Constitution, and the Bill of Rights, and of the Fourteenth Amendment of the Constitution of the United States, "to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown."  Ingraham v. Write, 430 U.S. 651, 672-3 (1976).

Justice Story, the late great Constitutional scholar and United States Supreme Court Justice, wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic." 3 J. Story, Commentaries s 1890, p. 746 (1833).  This happens to be the principle expressed in the Second Amendment of the Constitution of the United States which states that armed citizens, "being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  It is also the "right of the people peaceably to assemble."  (1st Amendment)  The combined exercise of the rights "of the people," to "assemble" while "bear[ing] arms" is subject to "regulation" by the People's laws, in order to constitute a "well regulated militia" assembled for "the common defense."  Cf. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939).

The right to keep and bear arms for defense of life, liberty and property was not invented specially for the Second Amendment of our Bill of Rights.  The right refered to and secured in that amendment was a well established, pre-existing right at common law.  The Second Amendment merely broadened the principle by forever reminding Americans that it is also their DUTY to bear military arms and to provide a common defense for their free States, by force of arms if necessary.  In that manner, the right to bear arms was "improved by clearer expression, strengthened by heavier sanctions, and extended by a more universal application."  The original "right" to bear arms against "oppression" to defend person and property is an ancient right or Englishmen which the English deduced and derived from the right declared in Magna Charta to keep and hold their life and property under the protection of the Law.  The right to defend one's life and property is one of the remedies which the Constitution provides for a threatened violation of a person's constitutional rights under the Law Clauses of the Fourteenth Amendment.  In many situations, self-defense is a remedy that is far superior to any after-the-fact judicial remedy.  In some situations, self-defense may be the only appropriate remedy for the preservation of one's life, liberty or property.  This is especially true when the Courts fail or refuse to restrain the violence of lawless oppression, or when the aggressors have no fear of (respect for) the Law or the Courts.

Notwithstanding this history, and the express words of the Second Amendment recognizing the 'right of the people to keep and bear arms,' the US Supreme Court is equivocal as to whether it will allow citizens to bear arms in defense of their lives, liberty, and property, against criminally deviant government agents:

Very recently, according to a story published by www.CourtTV.com on April 2, 1999, a Federal District Court in Lubbock Texas decided that private persons have "a right to own guns under the Second Amendment and that any law infringing upon that is unconstitutional."

Notwithstanding any contention that the Constitution of United States does not secure the right of persons to keep and bear arms, for defense of their life and liberty and property, the Constitution of the State of New York, a "common law" state, may preserve the People's common law or Due Process right of "having arms for their defense" ... when the sanctions of society and laws are found insufficient to restrain the violence of oppression." I do not believe that this right has been abrogated by the Constitution or Laws of this state.  The New York Penal Law codifying the common law doctrines of self-defense and "Justification" tends to confirm the existence of the personal right to bear arms for defense.  See People v. McManus, 67 N.Y.2d 541, 496 N.E.2d 202, 505 N.Y.S.2d 43 (1986).

MINI-APPENDIX

Express Law Guarantees in the New York State Constitution's Bill of Rights:

New York's highest court, the Court of Appeals has explained the Due Process of Law principle in these terms:

The Law of Justification and Defense, codified in New York:

Van Allen v. Town of Kinderhook, 47 Misc.2d 955, 263 N.Y.S.2d 491 (1965).

Dorothy B. VAN ALLEN and George Kent Van Allen, an infant, by his parent,

Dorothy B. Van Allen, residing at Town of Kinderhook, Columbia County, New York, Plaintiffs,

v.

The TOWN OF KINDERHOOK, a municipal corporation and Ernest Bink, as

Superintendent of Highways of the Town of Kinderhook, Defendants.

Supreme Court, Columbia County.

Aug. 20, 1965.

Action by plaintiffs who owned land abutting road to recover damages against the town and its superintendent of highways for destroying 18 wild cherry trees growing alongside road. The Supreme Court, R. Waldron Herzberg, J., held that the plaintiffs had a right to plant and maintain trees along the road for purpose of improving their property, that the evidence disclosed that the town by user had obtained a prescriptive easement over at least the traveled portion of road and that part of the shoulder extending to the trunks of the trees but not the trees themselves, and that plaintiffs had been damaged in the amount of $1,500.

Judgment for plaintiffs.

[1] BOUNDARIES k33

When land is bounded by street or road, it is presumed that title conveyed extends to center of street or road.

[2] HIGHWAYS k83

Owners of land bounded by road had right to plant and maintain trees along road for purpose of improving their property.

[3] HIGHWAYS k17

Whether road becomes public highway by user depends upon proof of compliance with provisions of statute providing that all lands used by public as highway for 20 years or more shall be a highway and that town superintendent shall open all such highways to width of at least three rods. Highway Law, § 189.

[4] HIGHWAYS k17

Under statute providing that all lands used by public as highway for 20 years or more shall be a highway and that town superintendent shall open all such highways to width of at least three rods, the burden of establishing user in the town rested upon town and town superintendent of highways sued by adjoining landowners for cutting down trees along the highway. Highway Law, § 189.

[5] HIGHWAYS k14

Under statute providing that all lands used by public as highway for 20 years or more shall be a highway and that town superintendent shall open all such highways to width of at least three rods, use by public and width of improvement refer only to traveled portion of road together with ditches and shoulders but not to shade trees along its sides. Highway Law, § 189.

[6] HIGHWAYS k17

Evidence disclosed that town by user had obtained prescriptive easement over at least traveled portion of road and that portion of the shoulder extending to trees but not to the trees themselves. Highway Law, § 189.

[7] HIGHWAYS k83

Neither plaintiffs who owned land abutting road nor town or its superintendent of highways could destroy or remove trees which stood partly on the right-of- way and partly on plaintiffs' property.

[8] EMINENT DOMAIN k271

Plaintiffs who owned land abutting road sustained damages by reason of trespass committed by town and its superintendent of highways in destroying 18 wild cherry trees along the road; the amount must be determined by finding the difference in the value of the land before and after the injury.

[8] EMINENT DOMAIN k303

Plaintiffs who owned land abutting road sustained damages by reason of trespass committed by town and its superintendent of highways in destroying 18 wild cherry trees along the road; the amount must be determined by finding the difference in the value of the land before and after the injury.

[9] EMINENT DOMAIN k305

The evidence in action by plaintiffs who owned land abutting road against town and its superintendent of highways who destroyed 18 wild cherry trees growing alongside road disclosed that plaintiffs had suffered damages in the amount of $1,500.

**493 *956

Appearances

Glenn & Kimmey, Albany, Russell H. Baller, Jr., Albany, of counsel, for plaintiff.

Burns F. Barford, Valatie, for defendants.

R. WALDRON HERZBERG, Justice. [FN*]

FN* R. Waldron Herzberg, Surrogate of Columbia County and Acting Justice of the Supreme Court designated to hear and determine this action by an Order of Mr. Justice Ellis J. Staley, Jr., Administrative Judge, Third Judicial District, dated June 16, 1965.

Decision

Plaintiffs bring this action in trespass to recover damages against the Town of Kinderhook and its Town Superintendent of Highways for destroying 18 wild cherry trees standing on land owned by plaintiffs and bounded by a town highway. Although the defendants admit the removal of these trees, they contend the laws of this state permitted them to do so under the circumstances without the consent or permission of the owners and without compensation.

On the 29th day of September 1964 the defendant Bink as Superintendent of Highways of defendant town, with the approval of the defendant Town uprooted and destroyed 18 wild cherry trees located along the south side of a town highway, known as Birchwood Road, in the Town of Kinderhook without the consent or permission of the plaintiffs. These trees were removed so that Birchwood Road could be widened and thereby make it possible for the Town to receive financial aid from the state under the Erwin Road Program. Bink testified that during his ten year tenure of office he trimmed these trees on several occasions and mowed around and behind them so as to keep the brush down. Furthermore he stated that the traveled portion of Birchwood Road during this period was 16 feet with no clearly defined ditch on the south side.

*957 At the time of this occurrence the plaintiff, Dorothy Van Allen, owned 78 acres of land in the Town of Kinderhook. A portion of this land was situated to the west of State Highway Route No. 9 and bounded on the **494 north for a distance of 676.35 feet by Birchwood Road. George Kent Van Allen, the other plaintiff and a son of Dorothy Van Allen, owned 3 acres of land part of which also bordered on Birchwood Road for a distance of 100 feet. Along this road between a wild cherry tree located on the property of Arthur Campbell to the west of plaintiffs' land (see plaintiffs' exhibit 6 in evidence) and a sugar maple tree standing on property to the east of plaintiffs' land (see plaintiffs' exhibit 12 in evidence) there stood prior to September 29, 1964 a row of at least 18 wild cherry trees (see plaintiffs' exhibit 13 in evidence). These trees had bordered Birchwood Road (formerly known as Pruyn Road) since at leat the year 1935 when George Van Allen, now deceased, planted additional wild cherry trees to the row already in existence.

[1] Since the deeds into plaintiffs described their land as bounded by Pruyn Road, now called Birchwood Road, plaintiffs own the fee of the [land in the road] since at least the year 1935. When land is bounded by a street or road, it is presumed that title conveyed extends to the center of the street or road. (See Bissell v. New York Central R. R. Co., 23 N.Y. 61, 64 (1861); Hennessy v. Murdock, 137 N.Y. 317, 322-323 (1893); Van Winkle v. Van Winkle, 184 N.Y. 193, 203-205, 77 N.E. 33, 35 (1906).)

[2] Futhermore the plaintiffs and their predecessors in title had a right to plant and maintain trees along Birchwood Road for the purpose of improving their property. In Palmer v. Larchmont Electric Co., 6 App.Div. 12, 17, 39 N.Y.S. 522, 525 (1896), reversed on other grounds 158 N.Y. 231, 52 N.E. 1092, 43 L.R.A. 672, Brown, P. J., writing for the Court said: '* * * On the side of the road the land owner has, however, substantial right [of property], both in the surface and in the soil. In addition to the ordinary easement for light, air, and access, he may, on a country highway, plant shade trees, cultivate the sides of the road, and do anything to improve or beautify it or his own property, so long as his acts do not impair the public right of passage. Jackson [ex dem. Yates] v. Hathaway, 15 Johns. 447. * * *'

Defendant Bink on the trial complained that the trees hindered the clearing of snow during the winter time. In support of his complaint defendants introduced in evidence a photograph (defendants' exhibit C) which shows the condition along Birchwood Road on New Year's Day in 1962. This condition could have been eliminated promptly by the Town Superintendent of Highways and the Town by following the procedure outlined in sections 147 and 148 of the Highway Law. However, it should be noted that the plaintiffs would have been entitled to compensation for any damages sustained *958 by the removal of these trees pursuant to these provisions of law.

**495

[3] To justify the removal of these trees the defendants contend that at the time of their uprooting Birchwood Road was a public town highway by 'user'. This question must be determined from the evidence submitted on the trial and from a construction of the applicable statute. Whether a road becomes a public highway by 'user' depends upon proof of compliance with the provisions of section 189 of the Highway Law which reads:

[4]  The burden of establishing 'user' in the town rests upon the defendants. '* * * To deprive an owner of the beneficial use of his property by prescriptive easement created through user requires a preponderance of evidence clearly establishing the requisites for prescription. * * *' (Katz v. Town of Brookhaven, Sup., 213 N.Y.S.2d 98, 99; aff'd 15 A.D.2d 534, 222 N.Y.S.2d 1012 (1961))

The method by which a court determines the width of a public highway has been spelled out in several decisions in this state. However applying the method outlined presents difficulties as is illustrated in this matter. In the recent case of Schillawski v. State of New York, 9 N.Y.2d 235, 238, 213 N.Y.S.2d 68, 70, 173 N.E.2d 793, 794 (1961) the opinion of majority reads: '* * * Where a road has obtained its character as a public highway by user, its width is determined by the width of the improvement (People v. Sutherland, 252 N.Y. 86, 168 N.E. 838; cf. Beisheim v. People, 26 Misc.2d 684, 39 N.Y.S.2d 333). But where the road has been laid out under a statute, it is the statute and not the user that determines the width. (Walker v. Caywood, 1865, 31 N.Y. 51). * * *'

The instant case resembles in many respects the situation before the court in Jones v. Cederquist, 1 Misc.2d 1020, 150 N.Y.S.2d 121 (1956) where the Town of Eillicott and its Town Superintendent of Highways attempted to open a town highway to a width of 3 rods (49 1/2 feet) without compensation to the adjoining owners of the land where the traveled portion of the road plus the ditches did not exceed 30 to 35 feet and in so doing a row of shade trees on each side of the highway would be destroyed. The court in its opinion at page 1026, 150 N.Y.S.2d at page 127, granting plaintiffs a permanent injunction against defendants said:

[5] After reading that part of the statute 'All lands which shall have been used by the public as a highway' (Highway Law, sec. 189) together with its interpretation by the Court of Appeals in Schillawski v. State of New York (supra) that 'Where a road has obtained its character as a public highway by user, its width is determined by the width of the improvement', I conclude that use by the public and width of improvement refers only to the traveled portion of the road together with the ditches and shoulders but not to shade trees along its sides.

[6] Therefore I find that the defendants have not established by a preponderance of the evidence that they made improvements to Birchwood Road for a period of 10 years or more prior to the 29th day of September 1964 sufficient to encompass the trees within the term 'user'. The acts of the defendant Bink in maintaining the traveled portion of the highway at a width of 16 feet, mowing between and around the trees on occasions to keep the brush down and trimming the trees 'several times' were insufficient to establish by prescription an easement in the trees. Sustained dominion by the town was required for the prescriptive period (see People v. Sutherland, 252 N.Y. 86, 168 N.E. 838 (1929)). On the other hand I find that the town did by 'user' obtain a prescriptive easement over at least the traveled portion of Birchwood Road and that part of the shoulder to the south of the highway extending to the northerly trunks of the trees.

However, even assuming arguendo that the acts of the Town Superintendent constituted 'user' under section 189 of the Highway Law, the defendants are not in a position to succeed in this action. Two survey maps were introduced in evidence by the parties. One was prepared by Roy Gilbert, a licensed suveyor, for the plaintiffs (plaintiffs' exhibit 17); the other vouched for by Bernard J. Kelleher, Columbia County Superintendent of Highways in behalf of the defendants (defendants' exhibit A).

Gilbert's map establishes the northern boundary of the Van Allen property along Birchwood Road as described in plaintiffs' deed (plaintiffs' exhibit 1). This line extends 776.35 feet in a westerly direction commencing at an iron pipe located at the northeasterly corner of Kent Van Allen's land (plaintiffs' exhibit 12) and continuing to an iron pipe **497 standing *960 at the northwesterly corner of Dorothy Van Allen's property (plaintiffs' exhibit 6). Defendants' survey map also connects these two iron posts by a line. In addition defendants' map plots the location of 15 of the 18 wild cherry trees, showing that 14 stood partially south of the boundary line fixed by the two iron posts and not wholly within the claimed right of way of the town. The other tree stood wholly on plaintiffs' land.

[7] In respect to the 14 trees, which stood partly on the claimed right of way and partly on plaintiffs' property, neither the Van Allens nor the defendants could destroy or remove these trees without the consent of the other. To do otherwise would constitute the commission of a trespass. (Dubois v. Beaver, 25 N.Y. 123, 126-128 (1862); Robinson v. Clapp, 65 Conn. 365, 32 A. 939, 29 L.R.A. 582 (1895); Scarborough v. Woodill, 7 Cal.App. 39, 93 P. 383 (1907); Blalock v. Atwood, 154 Ky. 394, 157 S.W. 694, 46 L.R.A., N.S., 3 (1913); Harndon v. Stultz, 124 Iowa 440, 100 N.W. 329 (1904).

The law covering the situation existing in this case is well stated in Robinson v. Clapp (supra) at pages 376-377, 32 A. at page 941: 'First, in reference to the tree. Upon the subject of the rights of the parties in a tree situated as this is it is said in Washb. [on] Real Prop. [Vol. 1] § 7a: 'The law as to growing trees may be regarded so far peculiar as to call for a more extended statement of its rules as laid down by different courts. * * * In the first place, trees which stand wholly within the boundary line of one's land belong to him, although their roots and branches may extend into the adjacent owner's land. * * * But the adjacent owner may lop off the branches or roots of such trees up to the line of his land. If the tree stand so nearly upon the dividing line between the lands that portions of its body extend into each, the same is the property in common of the landowners. And neither of them is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.'' and at pages 379-380, 32 A. at page 942, the court continued: 'It would really seem to come to this: that each of the landowners upon whose land any part of a trunk of a tree stands has an interest in that tree, a property in it, equal, in the first instance, to, or perhaps rather identical with, the part which is upon his land; and, in the next place, embracing the right to demand that the owner of the other portion shall so use his part as not unreasonably to injure or destroy the whole.'

**498 [8][9] Having decided that the defendants committed a trespass upon plaintiffs' land, we now proceed to the question of damages. If the plaintiffs sustained damages by reason of the trespass committed *961 by defendants in destroying the 18 wild cherry trees, the amount must be determined by finding the difference in the value of the land owned by plaintiffs before and after the injury. (Evans v. Keystone Gas Co., 148 N.Y. 112, 116, 42 N.E. 513, 514, 30 L.R.A. 651, (1895); Nichols v. New York & Pennsylvania Tel. & Tel. Co., 126 App.Div. 184, 189, 110 N.Y.S. 325, 328 (1908); Stevens v. State, 21 Misc.2d 79, 82, 197 N.Y.S.2d 111, 114, aff'd 14 A.D.2d 823, 218 N.Y.S.2d 535 (1961).

The disparity of the testimony offered by the real estate appraisers for both parties makes the assessment of damages difficult. Plaintiffs' expert testified that the 81 acres of land were worth $58,000. before the removal of the trees and $52,000. thereafter resulting in damages amounting to $6,000. On the other hand defendants' expert valued the land at $25,350. before and the same amount after with no loss.

From the record I find that the plaintiffs owned a total of 81 acres of level land in the Town of Kinderhook, part located to the east of State Highway Route No. 9 and part to the west. The section lying west of this main highway was also bounded for a distance of 776.35 feet by Birchwood Road. Furthermore I agree with plaintiffs' expert that the land bordering on Birchwood Road was suitable for a real estate development and that these trees added to the land's value. These trees according to a neighbor, Arthur Campbell, were healthy, approximately 35 to 40 feet tall and some were 2 feet in diameter. From the credible evidence I conclude that plaintiffs' property had a fair market valuation of $30,000. before the 18 trees were removed and a valuation of $28,500. after the destruction resulting in a direct loss to plaintiffs in the amount of $1500.

The Town Superintendent left the stumps of the trees on plaintiffs' land. I find from the evidence that the reasonable cost of removing these dead tree stumps will be the amount of $465.

Judgment for plaintiffs against the defendants in the amount of $1500. with costs. Plaintiffs may also enter a judgment in the amount of $465. without costs in the event defendants fail to remove the stumps of the trees from plaintiffs' land within 60 days after entry of this judgment.

All motions upon which decision was reserved at the trial are resolved in accordance with the foregoing.

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