New York Attorney General Opinion No. 95-31 summarizes the case law on this subject, and confirms that Town Highway personel have no legal right to widen narrow "user" highways without obtaining either the consent of or a deed from the abutting landowners or a Condemnation  Order through Eminent Domain Procedure Law. 

Highway Law  171 (3) provides:

"If a highway proposed to be constructed or improved shall deviate
from the line of a highway already existing, the town board of the town
where such highway is located may acquire land for the requisite right
of way. The town board may, by resolution, authorize the supervisor to
purchase the lands to be acquired for the purposes herein specified ....  The purchase price of such property shall be a town charge and may,
by resolution of the town board, be paid from any funds in such town
that may be legally used for such purposes."

http://caselaw.lp.findlaw.com/nycodes/c50/a9.html

    At this point in time, all Town Highwaymen who stealthily (without prior notice or consent) enter upon private lands abutting ancient town "user" highways (especially lands bounded by conspicuous ancient monuments such as stone fences mature trees, or old fences or POSTED signs), for the purpose of physically widening a narrow highway or for creating new ditches should be uniformly delt with (resisted and arrested) and prosecuted as common criminals.

See Rights of NY Landowners to Use Force (Display Guns) to Stop, Expel and Arrest Defiant Trespassers (or Theives) http://billstclair.com/ferran/

And see my earlier Commentary on the case of the Gun-Toting Grandma, Hildegard von Waldenburg,  http://billstclair.com/ferran/markferran1.html#Grandma  (Landowner's Defense Attorney Terry "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). )

Criminal Charges against such highwaymen may include Criminal Mischief, Criminal Trespass, and Grand Larceny of Real Property.  See "Theft of Premises" in Rights of NY Landowners to Use Force  http://billstclair.com/ferran

A different situation may exist where the Highway Superintendent has been specifically "directed by the County superintendent, and when
authorized by the town board" to enter upon specified lands adjacent to existing public highways for the purposes listed in Highway Law 147.  http://caselaw.lp.findlaw.com/nycodes/c50/a8.html

However, even where a Town Highway Superintendent was pretending to act lawfully "to remove any fence or other obstruction which causes snow to drift in and upon such highways", the Highest Court of New York state has held that it was Lawful and Justified for the owner of the abutting lands so entered upon to commit Assault and Battery upon the person of the Town Highway Superintendent, in defense of his property, where the Town Highway Superintendent apparently acted with malicious selectivity and without actual public necessity.  People v. Herrington.

Landowners in the Town of Schodack, Rensselaer County should be especially concerned about the possiblity of Land-Theft or Tree-Theft being attempted by agents of the Schodack Town Highway Department because the Town of Schodack's website illegally asserts that all highways, including any ancient narrow "user" highways in the Town are "three rods" (49.5) feet wide:

"The Town removes trees that are in the Town right of way. The Town's right of way is 49.5 feet or three rods. The Town may remove trees that fall into this range"

This reference to "Trees" growing within 24.5 feet (half of 49.5 feet) of a centerline of an existing highway strongly implies that land which has not "been used by the public as a highway" is being targeted for Trespass and Destruction by the Town of Schodack.

Any person who owns land containing mature trees, fences, lawns, or structures within 24.5 feet of the centerline of any Schodack Town Highway should contact the Town Clerk to determine the History and origin of that highway and to discover any Documentation of such a roadway, (See Highway Law section 140 (8 & 11) http://caselaw.lp.findlaw.com/nycodes/c50/a8.html); and if there are no records or deeds or surveys definitely describing its right-of-way (course and width) and there are no monuments established "so that the extent of such highway boundaries may be publicly known", such abutting landowners can take steps necessary to secure their adjacent private property against threatened "unauthorized deprivations."  See: Part 2 at www.billstclair.com/ferran  Such steps traditionally include the purchase of guns and ammunition.

Additionally, persons in the Town of Schodack whose trees, fences, lawns or structures are threatened by the Town's declaration of an intention to trespass upon and destroy private lands abutting upon narrow "user highways" can take also take one or more of the following steps to prevent such unauthorized deprivations:

1)  Serving upon the Town of Schodack a "Notice of Claim" giving notice of the landowner's cause of action for "Slander of Title" by the Town of Schodack.  (This cause of action may require a showing of "special damages" such as any damages arising from any trespass, false arrest, or other physical interference with such lands due to the Slander of Title.)

2)  Immediately sue the Town of Schodack in State Supreme and/or Federal court for the purpose of obtaining an Injunction restraining the Town and its Highwaymen from illegally widening or otherwise entering upon lands adjacent to existing "user" highways.  However, State Supreme Court Judges Canfield and Ceresia have repeatedly refused to enjoin such illegal practices and they even made it necessary for Hildegard von Waldenburg to resort to the Display of her Shotgun in lawful defense of her land and trees.  Presently, these two Judges are the principal "Companions of Theives" in Renselaer County who are personally responsible for the continued destruction and theft of private lands along narrow user highways in the county.  Resort to Guns in defense of land may continue to be strictly necessary until these two Judges stop abetting and tactitly condoning unauthorized deprivations committed by lawless government agents in Renselaer County, or until they are removed from office.

3)  Serving a "Trespass Warning" upon the Town and its Highway Superintendent, sending a copy to the State Police, local Police, and Sheriff, warning them against unauthorized entry upon specified private lands abutting upon the particular narrow "user" highway. 

Anyone who has already suffered an actual loss of mature trees, ancient fences, or a strip of abutting lands due to illegal trespass or theft of premises committed by a Town or the County agent within the past ten years can commence an action in State or Federal Court to recover that stolen land, and if within 3 years, to recover damages pursuant to 42 U.S.C. s 1983. To sue for damages under State (Trespass) Law, a Notice of Claim generally must be served within 90 days of the trespass.  But, a prior Notice of Claim is NOT required to recover possession of lands illegally seized by the Town within the past 10 years.  If more than 10 years has elapsed since the illegal seizure of lands for use as a highway by the public highway, the Town may have since acquired Prescriptive rights in such seized land pursuant to Highway Law s 189 (or under common law in the case of the county)

TIMBER THIEVES

Town Highwaymen are not the only persons known to steal trees in Rensselaer County.  There are many pathological Timber-Thieves who  privately steal trees in Rensselaer County.  They stay "in business" by manipulation and deceit.

In March of 2001, Nadia Ferran (Mark Ferran's mother) immediately contacted David Smith and told him of the ongoing Timber-Theft by Basolt that Mark had discovered, and David Smith repeatedly contacted the State Police at Brunswick to demand them to investigate the Timber Theft.

On March 10 of 2001, Mark Ferran discovered that Timber-Thief John Basolt had been stealing trees from the Smith Parcel by dragging them over the Ferrans' Bridge and land.  After being caught, John Basolt kept away from the Ferran and Smith properties, ... UNTIL April 16, 2001.

David Smith had, prior to April 16, 2001, informed John Basolt that the Smith Parcel was "landlocked" (without an easement or right-of-way across the Ferran parcel).  Audio Clip- David Smith informed John Basolt that there is No RIGHT to cross the Ferran property.

[And, in March of 2001, John Basolt acknowledged (to the lenders that he defrauded) that he knew that the parcel was "landlocked." http://home.nycap.rr.com/mferran/McNamee.htm ]

Audio Clip408 JOHN BASOLT Boasts he will "GET UNLANDLOCKED" with the help of his accomplices.

After pondering for a day about how to blackmail Mark Ferran, on April 17, 2001, John Basolt signed a False criminal Complaint based on a PERJURED "SUPPORTING DEPOSITION" signed by John Basolt stating that he had already "purchased" land still now owned by DAVID SMITH:  http://home.nycap.rr.com/mferran/JohnBasoltLIES.tif 

(Get a good TIFF-viewer Plug-in here: http://home.nycap.rr.com/mferran/AlternaTIFF.htm  Try Uninstalling QuickTime first)