2 N.Y. 447 | NY | 1864
There was no legal evidence of any encroachment by the defendant upon the street or Mghway m question. It was not originally a laid out highway, but had become a highway by having been used as. such for over twenty years preceding the 21st of March, 1797. It must be quite obvious to every one, that before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertamed and determined in some mode prescribed by law. The jury wMch is called to determine the disputed ques
It is true, as suggested by the appellants’ counsel, that the provision of the act in question, in regard to encroachments, is not in terms confined to laid out highways, as in the revised statutes, but extends to every case of a highway encroached upon. The provisions of section eighty-five of the act, however, clearly contemplate the case of a highway, the boundaries of which have been in some way fixed and determined beforehand, as the order must describe the width of the highway and the extent of the encroachment and the place where it exists. This, obviously, could never be done unless the highway had been either laid out, or its boundaries ascertained and described. That had not been done in this case. The order of April 1, 1833, was clearly a nullity, and no foundation had been laid on which proceedings of this kind could be based. In addition to all this, the line on the defendant’s side of the highway, which was attempted to be established by that survey and order, for the public convenience, went through buildings and yards, in entire disregard of the provisions of the act. There was no foundation for the action, and the judgment should be affirmed.'
Wright, Davies, Ingraham and Hogeboom, JJ., were also for affirmance.
This was not a case in whicn it was proper to take the determination from the jury by a peremptory direction to give a verdict for the plaintiffs, subject to the opinion of the general term, unless the decision depended wholly upon the documentary evidence produced by the plaintiffs. If there was any disputed question of fact to be determined, such a direction could not legally be given, and it would be a mistake for which the judgment would have to be reversed. (Cobb v. Cornish, 16 N. Y. R. 602 Gilbert v Beach, id. 606;) and see Manning v.
The opinion of the supreme court, in the xpresent case, relies upon a former judgment of the same court in Doughty v. Brill (36 Barb. 488), which was decided under the general statutes of the state concerning highways. The provision there made respecting encroachments was, that “in every case where a highway shall have heen laid out, and the same shall have been encroached upon by fences,” &c., the commissioners may order them to be removed, and that a proceeding like that contained in the Long Island statute may be taken in case of refusal. Much stress was properly laid upon the expression that the highway should have been laid out. But whether that qualification was omitted in the section by design or by inadvertence, the circumstance that it is, in fact, omitted, obliges us to construe it
If these suggestions should be concurred in by my brethren, the judgment appealed from will be reversed, and a new trial ordered.
ítuLLDsr, J., concurred with Denio, Ch. J. -Selden, J., did not vote.
Judgment affirmed.