36 Barb. 488 | N.Y. Sup. Ct. | 1862
By the Court,
The plaintiffs brought their action to recover certain penalties, alleged to have been incurred under the highway act, for the negligent omission to remove an encroachment by fences erected upon a highway in the town of Beekman. The answer admitted most of the allegations in the complaint; especially the meeting of the commissioners and the order that the encroachments be removed, and the service of the notice to remove; but it denied that the notice, or the order, specified the breadth of the road originally intended. It also admitted the service of the
At the trial before Mr. Justice Ehott, at the Dutchess circuit, it was admitted by the counsel for the plaintiffs that there was no record of the highway in controversy in the office of the town clerk of Beekman; in other words, that it was not -one of that class of highways which had been laid out by proceedings under the statute, and it also appeared that the order of the commissioners, and the notice for the removal of the encroachment, did not specify the breadth of the road as originally intended.- This -latter -circumstance ensued as-a consequence of the -want of a record in the town clerk's office.- - -The plaintiffs- were nonsuited upon"the trial, the judge being of opinion that there could be no proceedings for an encroachment, by the commissioners, in a case-where the highway had not been laid out, and- recorded, in conformity with the directions of the highway act. ■ - ■■ ......
The distinction between public highways laid out and allowed by law, and public highways which become such by a user of twenty years and upwards:, is recognized and maintained in various provisions of title 1, chap. 16,-in regard to highways-and bridges. Thus, in the 3d subdivision of section 1, it is made the duty of the commissioners of highways to -cause such of the roads used as highways as shall have been laid out and- not sufficiently described, and-such as shall have been used for twenty years but not recorded/-to be ascertained, described and entered of record in the- town clerk’s office: So also section 104 declares, “ all-public highways now in-use,-heretofore laid out and alio wed-by any law of this
The 107th section of the act, which is the basis of the plaintiffs’ proceedings in this action, declares that “ in every case where a highway shall have been laid out, and the same shall have been encroached upon by fences erected by any occupant of the land through or by which such highway runs, the commissioners of highways of the town shall, if in then-opinion deemed necessary, order such fences to be removed, so that the highway may be of the breadth originally intended.” The commissioners are to make and sign an order in writing. They are also to give notice in writing to the occupant of the land, to remove the fence within 60 days; and every such notice and order shall specify the breadth of the road originally intended, the extent of the encroachment and the place .or places where the same are. Then follow the sections containing the directions for summoning a jury, for the hearing, the rendering their verdict and filing their certificate, if the encroachment is denied by the occupant of the adjoining land, It is to be observed, that the proceedings are had in respect to “ a highway which shall have been laid out, and shall have been encroached upon by fences erected by an occupant of adjoining land. Indeed, they can apply to
Emott, Brown, Scrughxm and Lott, Justices.]
I therefore conclude that the commissioners of the town of Beekman had no jurisdiction of the subject of the encroachment upon the road referred to in the pleadings, and that they were properly nonsuited at the trial.
The judgment should be affirmed.