FOREST, FISH AND GAME COMMISSIONER. 397 



by reason of their common law powers and the provisions of the highway 

 law of the State lay out in accordance with law the highway in question; 

 the application being opposed by the Forest, Fish and Game Commis- 

 sioner was denied by the highway commissioners in a decision holding 

 " that the provisions of the patent referred to in said petition do not con- 

 stitute a dedication of land for highway purposes within the meaning and 

 intent of section 80 of the Highway Law, and upon the further ground 

 that if the provisions of said patent do constitute such dedication that the 

 lands through which the proposed highway is to be opened, being situate 

 within and constituting a part of the Forest Preserve, that said commis- 

 sioners of highways have no jurisdiction to grant said application." 



An agreed controversy upon the application to and decision by the 

 highway commissioners was thereafter submitted to the Appellate Divi- 

 sion, Third Department, and the following questions were presented to 

 the court for decision: 



1. Whether the letters patent constitute a dedication of five acres 

 out of every hundred acres over which the highway commissioners of the 

 town of Arietta, Hamilton county, could exercise jurisdiction for the pur- 

 pose of laying out a highway therein as provided by section 80 of the High- 

 way Law? 



2. If said letters patent constitute a dedication of five acres out of 

 every hundred acres over which the highway commissioners of the town 

 of Arietta, Hamilton county, can exercise jurisdiction for the purpose of 

 laying out a highway, are said commissioners deprived of jurisdiction for 

 said purpose by reason of the lands being situated in and constituting a 

 part of the Forest Preserve of the State? 



The questions thus presented were determined by the Appellate Divi- 

 sion in favor of the State and judgment was directed accordingly. From 

 this judgment an appeal was taken to the Court of Appeals, which court 

 dismissed the same. 



The result of this litigation is one of far-reaching importance and 

 indicates the impossibility of procuring highways across forest preserve 

 lands so long as the Constitution remains unchanged and continues to im- 

 press upon the preserve the character of a wilderness to "be forever kept 

 as wild forest lands." 



