JOHN C. ROBERT and Others v. H. M. SADLER and Others

The opening of a road is not completed when a certain and fixed piece of land is taken from the' owner for a highway. It is necessary first to open and work it. This includes so grading the surface of the land as to make the road fit for travel. Hills must be cut down and valleys and swamps filled up. There is no fixed grade beyond such a line as is best adapted to make a good and easy road. This grade may be changed from year to year to meet appropriations of money for improvement. It has always been held in this State that the material and timber within the limits of the road may be used for the making, working and improvement of the road and for making bridges thereon. (Jackson v. Hathaway, 15 Johns., 447.) With the exception of this right, the landowner retains the exclusive right of property. In the case of the Niagara Falls Suspension Bridge Company v. Bachman (4 Lans., 523) it was decided that gravel may be lawfully taken by the highway commissioners and carried from lands opposite one person and used on a pai’t of a highway opposite another owner, for the repair of the road.

The case of Fisher v. The City of Rochester (6 Lans., 225) only decides that a contractor who has used the stone for his own use, and not upon the highway, did not owe the city therefor, in such cases the material belongs to the owner of the land. There is no *379limit beyond which material may not be taken if needed for the purposes of a road. As already observed, a grade may be changed, and no reason is presented why material below the surface of the road may not be taken to improve the face of the road elsewhere* provided that the excavation is so filled up as to make a good road. The judgment should be affirmed, with costs.

Judgment affirmed, with costs.