By the Court, Gray, J.
The facts in this case are, in short, these: The plaintiff conveyed to the defendant his farm in Preble, Cortland county, excepting therefrom the land embraced in its boundaries which at the date of the deed was included in the highway. Since the conveyance the defendant has dug up the road and run a water pipe across it; set out fruit and shade trees, and piled stone, lumber and manure within its boundaries, and used a portion of it for farming purposes, and claims, as against the plaintiff, the right to appropriate the highway to the uses described. The simple and only question presented is, whether ejectment can be maintained by the plain*34tiff for the recovery from the defendant of the premises thus used and occupied by him. That the freehold of the land in question is in the plaintiff, no one denies; but whether ejectment can be maintained by the owner of the freehold, while the highway exists, is a question upon which there is a diversity of opinion among judges. Goodtitle v. Acker, (1 Bur. 133,145,) and 3 Kent’s Com. 433, are authorities in favor of the right to maintain the action. And although the precise question here presented, has not been adjudged, in this state, it has been judicially asserted in several cases; by Platt, J., in Jackson v. Hathaway, (15 John. 453 ;) by Savage, Ch. J., in Saunders v. Wilson, (15 Wend. 339 ;) by Cowen, J., in Pearsall v. Post, (20 id. 126;) by Gridley, J., in Burdick v. Goit, (3 Barb. S. C. R. 468;) and by Hand, J., in the case of the Northern Turnpike Company v. Smith, (15 id. 355.) The only opinion against this doctrine, emanating from the bench in this state, is to be found in Adams v. The Saratoga and Wash. R. R. Co. (11 Barb. 414, 453-5.) The learned judge in that case follows the opinion of a distinguished judge in the case of The City of Cincinnati v. The Lessee of White, (6 Peters’ U. S. R. 431, 441-2.) It is worthy of remark, that in each of these cases the opinions, although elaborate, were extra judicial. The only question in the case last referred to was, whether the land sought to be recovered had been dedicated to public use. The same question arose in the case of Adams v. The Saratoga and Wash. R. R. Co., and there the question was unether it had been used for purposes other than that for which it was dedicated. There had been no appropriation, in either case, to private use, and hence the point here made was not up, and so one of the learned members of the court, upon being referred to the case, has since decided. (Northern Turnpike Co. v. Smith, 15 Barb. 355, 358.) Thus it will be seen that these opinions are of no greater weight, as authority, than those holding to the contrary doctrine, before referred to, and that in reality nothing has been decided in this state that' tends in the slightest degree to impair the influence of opinions emanating from the highest legal intelligence, in favor of the right to *35maintain this suit. The cases referred to in Smith’s Leading Cases, 183, 184, show that wherever the question has arisen, except in Connecticut, the right to maintain ejectment has been established. The only objection ever urged against it is, that exclusive possession of the premises in dispute cannot be given to the plaintiff. But let this objection prevail and any erection short of a nuisance may be made on the road "side in front of the owner’s domicil, and the owner would be without complete redress, and the lawless occupant would hold it until the use of the whole road as a highway should be discontinued, unless the public authorities should see.fit to remove him. This objection, it seems to me, is completely disposed of by Lord Mansfield, who held that the sheriff should deliver the possession of the defendant to the plaintiff, subject to the public easement. The conclusion to which I have arrived is, that the judgment entered on the report of the referee should be reversed, and a new trial ordered.
[Madison General Term,
September 12, 1854.
Judgment accordingly.
Gray, Mason and Shankland, Justices.]