By the Court,
Bkowkt, J.
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 *492notice denying the encroachment, the issuing of the summons, the service thereof, the meeting of the freeholders, the proceedings "had before them, their certificate finding 'that an encroachment had been made, and the filing the same with the town clerk as required by the statute. -But--it alleged and insisted that such road or highway had never -been laid out, and that no record or survey of the laying out of such road had ever been filed in the clerk’s office of the -town -of Beekman. ° ' ■
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 *493state, of which, a record shall have been made in the office of the clerk of the county or town; and all roads not recorded, which have been used as public highways for twenty years or more, shall be deemed public highways, but may be altered in conformity to the provisions of the title.” The first class become public highways by force and authority of proceedings had under the statute, and which assure compensation to the owners of the lands taken for that purpose; while the latter class become such by force of a rule of the common law, which presumes a dedication or grant from the public use for twenty years and more. The distinction is substantial and material. It was present to the minds of those who framed the law; and we, who are to construe and expound its various parts, must, also keep it in mind. Otherwise we shall not give effect to the intention of the legislature.
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 *494no other. The commissioners are to order the fences to be removed, so that the highway may be of the breadth originally intended. They are also to specify in the order and notice what the breadth of the road was originally intended to be, and the extent and the place of encroachment. That is, the order and the notice are to contain the lines—the exterior lines of the road—as originally laid out, and inform the occupant upon what part of the line he has encroached by fences. In Mott v. The Commissioners of Highways of Rush, (2 Hill, 472,) the court held it to be an incurable defect, in similar proceedings, that the notice and order omitted to specify the original breadth of the road, and the extent and the places of the encroachment. In the opinion it is said: “ The commissioners are required to put the party in possession of all the particulars of the encroachment necessary to enable him to go upon the ground, where it is alleged to exist, and remove it at once. They are to ascertain the original width of the road, the place and extent of the encroachment, and must specify and limit the same in a way that can be easily and readily comprehended by the occupant.” When the statute speaks of the “ breadth of the road originally intended,” it uses terms which can only apply to roads deliberately and carefully laid out, with lines designated by monuments, or courses and distances, and the width of which is accurately stated and made- a record in the office of the town clerk. Boads which become public highways by twenty years’ use do not always originate in the intention of any one. In a country like ours, in times past, they have their origin not unfrequently in accident and convenience, in obscure paths and passage ways from one settlement to another, which increasing population and travel in time matures into a public highway. They certainly do not usually have their origin in that intention which manifests itself in a formal written grant or dedication wherein the lines and courses, length and breadth, are designated with accuracy and precision, for the information of future times. In regard to such roads, there *495is no means at the command of the commissioners by which they can say what the breadth was originally intended to be. As to them, the provisions of the statute in regard to encroachments could not be executed. This construction accords with the letter of the statute.
Dutchess General Term,
May 12, 1862.
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.