39^ FIFTEENTH ANNUAL REPORT OF THE 



The important question was raised by this application as to the right 

 of the Commission to lay out a highway over the lands of the State con- 

 stituting its Forest Preserve, by reason of the reservation for highways 

 contained in the original patents and by the authority and power conferred 

 upon the Commission by the statute. 



The application was denied by James S. Whipple, Forest, Fish and 

 Game Commissioner, from whose decision thereon we quote the follow- 

 ing excerpts: 



' If the proposed highway is to be a public highway, then unless au- 

 thority is found to lay it out across the park lands of the State in the Forest 

 Preserve by virtue of the fact that five acres in every hundred acres were 

 reserved in the grant made by the State more than one hundred years ago, 

 it cannot be laid out. If it were admitted that originally after the con- 

 veyance from the State that it could have been done, can it be admitted 

 now after the lapse of more than a hundred years and after the State has 

 again acquired the complete title to the lands across which it is proposed 

 to lay out said road? In other words, having again obtained the complete 

 title to the lot, is not the reservation merged in the general title in the State ? 

 Under the Constitution, can any portion of the Forest Preserve of the State 

 of New York be taken for highway purposes on the principle of the ancient 

 reservation as stated in this petition? 



: ' In view of all the facts and the very serious doubt as to whether any 

 right exists which the petitioner can through this Commission or in any 

 other way take advantage of to obtain said highway, the application is 

 denied." 



The decision of the Commissioner being primarily based upon the 

 want of power to act, Mr. Woodruff made application to the Supreme 

 Court for a writ of mandamus commanding the Commissioner to approve 

 the proposed route or to lay out such other route as might be proper. This 

 application was denied by Mr. Justice George H. Fitts, from whose decision 

 an appeal was taken to the Appellate Division where the decision of the 

 Special Term was unanimously affirmed. 



Mr. Woodruff then made application to the commissioners of highways 

 of the town of Arietta, Hamilton county, the town and county in which 

 the lands in question were situated, requesting that the commissioners 



