
    William Doughty et al., Commissioners, etc., Appellants, v. Rowland Brill, Respondent.
    The statutory penalties for encroachments upon highways are applicable where the highway has been “ laid out ” according to law, and not to highways established by prescription.
   Bockes, J.

This case comes before this court on an appeal from a judgment in favor of the defendant, dismissing the complaint with costs.

The action was brought by the plaintiffs, commissioners of highways of the town of Beekman in the county of Dutchess, to recover penalties imposed by statute for an alleged encroachment upon the public highway. On the trial it • appeared, from the pleadings and proofs, that the highway, at the place of the alleged encroachment, had been used as such by the public for a period exceeding twenty-five years, and that proceedings had been taken by the commissioners under the statute by which the defendant’s fence was declared an encroachment on the highway, and that he had been notified to remove the same, which he refused to do. It further appeared that the highway had never been laid 'out, or, as stated in the case, that there was no record of it on the town books. Judgment of nonsuit was ordered on the ground that the statute authorizing a recovery of penalties for encroachments ■ on the public highway applied only where the highway was “ laid out ” according to law. The decision of this case by the Supreme Court (opinion by Mr. Justice Beowh) is reported in 36 Barb. 488. A careful examination of the cáse has led me to the conclusion adopted by the Supreme Court, and for the reasons clearly and tersely given in the opinion of Mr. Justice Beowh. That learned judge has noticed the obvious distinction in the rules of law applicable to public highways existing by prescriptive right, and those which became such by force and authority of proceedings under the statute for the laying out of highways,, which statute provides for compensation for the damages occasioned thereby. He shows very clearly that the section of the statute imposing penalties for encroachments, and under which the plaintiffs claimed to recover, had application according to its strict language to'a case “ where a highway shall have been laid out,” leaving the common law remedy for nuisance, to unlawful interference by obstructions in highways established by prescription. The rule must also be held in mind that penal statutes are to have a strict construction. Their application will generally be limited to cases falling within the letter. So it has been often held that penalties cannot be raised- by implication. They must be expressly created and imposed.

The line of argument and suggestions of Mr.' Justice BboWh have also received the sanction of this court in Talmadge v. Hurting (29 N. Y. 447). Although not then directly decided, the opinion is plainly intimated that the provisions of law here under consideration in regard to encroachments must be deemed confined to laid out highways.

The judgment of the Supreme Court should be affirmed.

All concur.

. Judgment affirmed.  