
    Parker vs. The People.
    The statute {S. L> 1861^ p. 153) providing for a penalty for encroachments upon highways has reference only to such highways as are “laid out,” and not to those that exist by prescription.
   Graves, J.

-Parker was sued before a Justice for the penalty of 50 cents per day given by the act of March 11,1861, for an-alleged encroachment by fence, upon a highway, and the defend ant in error obtained judgment, and Parker appealed. On the trial in the Circuit, where the People again obtained judgment, certain exceptions were taken, which were carried to the Supreme Court.

Meld, That as the penalty sued for is only given for encroachment upon such highways as are “ laid out,” the evidence of user admitted on the trial to prove the existence of the way w;as immaterial and not pertinent to the issue.

The survey bill and order made by the commissioners, and which the court allowed to be given in evidence, did not show the laying out of a highway.. They were made under the statute which requires the commissioners to ascertain, describe and enter of record such roads as become highways by publio úse tor the requisite length of time.

This statute assumes the existence of ways by prescription which ought to be described in the town records, and does not contemplate the making of new ways. The survey and order in question were, therefore, inadmissible as evidences of the laying out of a highway; or of the existence of a highway laid out by commissioners.

Judgment reversed.  