Parker v. Van Houten

7 Wend. 145 | N.Y. Sup. Ct. | 1831

By the Court,

Nelson, J.

The evidence warranted the verdict of the jury. The commissioners of highways having in 1821 caused a survey of the road to be filed and recorded, the existence of the road as a public highway was fully established, and whatever irregularity may have happened in the laying out of the road, the acts and doings of the commissioners are confirmed by the statute on the subject of highways, 1 R. S. 520, § 98, 521, § 100, by which all roads or highways laid out by commissioners since 31st December, 1805-, and prior to 14th April, 1826, are confirmed, provided such commissioners shall have caused a survey of such roads or highways to be filed and recorded in the office of the town clerk of the town. As to the debt, therefore, the judgment below must be affirmed but as to the costs it must be reversed, the plaintiffs below not being entitled to'recover costs, the penalty to which the defendant was liable, as found by the jury, being only five dollars.

The costs were awarded by the common pleas, under the impression that the plaintiffs were entitled to the same by the provisions of the ninth section of the fifty dollar act, Laws of 1824, page 283, the defendant in the suit against him before the justice for the same cause of action having justified on a plea of title, the justice having suspended further pro" oeedings before him, and the plaintiffs having commenced their suit in the common pleas, where they obtained a verdict. Although the language of the act of 1824 is very broad, “ that in any action wherein the title to land shall in any wise come in question,” and a plea of title is interposed, the plaintiff may commence his suit in the common pleas, and if he recover any damages in such suit the defendant shall be liable to pay to such plaintiff double costs, still the act cannot be considered as applying to a case in which a plea of title would be wholly irrelevant, and where it could not possibly constitute a defenceSuch was the case here; the action was by the plaintiffs, as commissioners of highways, for an obstruction of a road; and the defendant pleaded that the locus in quo was his soil and freehold. Had the plaintiffs demurred to the plea, they must have had judgment; for admitting the plea to be true, it constituted no defence to the action; for though the fee of a road may be in an individual, the rights of the public in it as an easement cannot be invaded, even by the owner of the fee, while it is used as a public highway.

As the plaintiffs below were led into the error of commencing their suit in the common pleas by the defendant’s interposing a plea of title before the justice, and as the revised statutes, vol. 2, p. 618, § 31, have vested a discretion in the court to award costs to either party, where a judgment is reversed in part and affirmed inpart, I deem this a proper case for the exercise of that discretion ; and am therefore of opinion that the judgment below should be reversed as to the costs, but affirmed as to the debt, and that single costs be paid by the plaintiff to the defendants in error.

Judgment accordingly.