454.99
RESOLUTION 454 1999; RESCINDING RESOLUTION 252, 95 WHICH
“DISCONTINUED” A PORTION OF FULLER ROAD
RESOLUTION NO. 454. 99 DEFEATED
INTRODUCED BY: Mr. Douglas Irish
WHO MOVED FOR ITS ADOPTION
SECONDED BY: Mr. Pliney Tucker
WHEREAS, by Resolution 252 of 1995 enacted April 17, this Board purported to
“discontinue” an approximately 1, 850 foot portion of Fuller Road in reliance on Section 171 of
the Highway Law, and;
WHEREAS, by a Decision of the Queensbury Town Court (Michael J. Muller, Town
Judge) dated December 3, 1999 in People V. Morrell et al a matter involving a charge of criminal
Trespass on the highway at issue, a Court determined, on the merits, that the Board’s previous
action was unconstitutional and ultra vires since the highway in question was a long-standing
“highway by use” which would require “abandonment” under the procedures of Highway Law
Section 205, rather than the procedures used by the Board relating to “dedicated” highways, and;
WHEREAS, Justice Muller also determined that, as a “highway by use” which had been
used by the public “as early as 1876”, the highway right-of-way in question retained its character
as public rather than private property, and that as such, members of the public can not be found
guilty of criminal Trespass for entering upon or using the Fuller Road right-of-way as a public
easement, on the basis that this Board’s “…purported act of closure is without legal effect
“because” a highway by use could not be closed by a statute which exclusively controls closure of
a highway by dedication”, and;
WHEREAS, based on the foregoing, it appears that the Board’s Resolution 252 of 1995 was
based on an erroneous interpretation of the relevant provisions of the Highway Law affecting the
proposed “discontinuance’s” or abandonment’s” of “highways by use” such as Fuller Road,
NOW, THEREFORE, the Board resolves as follows:
1. Resolution 252 of 1995, be and the same is hereby revoked;
2. The Highway Superintendent is directed to immediately remove any and all barricades and/or
obstructions to public use across or within the Fuller Road highway right-of-way in question,
as such obstructions are unauthorized, a public nuisance and a safety hazard.
th
Duly adopted this 20 day of December, 1999, by the following vote:
Ayes: Mr. Irish, Mr. Tucker
Noes: Mr. Merrill, Mr. Turner, Mr. Champagne
Absent:None