
    Town of West Union, Respondent, v. Mortimer Richey, Appellant.
    
      Justice of the-peace —penalty for a. failure to remove an encroachment on a highway where the defendant does not plead, title—proof of a highway by user will sustain the action—title is not involved in an issue as to actual possession.
    
    Where in an action brought in a Justice’s Court under section. 105 of the Highway Law (Laws of 1890, chap. 568), to recover the statutory penalty for a failure to remove an encroachment upon a highway, the defendant does not plead title, the controversy is confined to the question whether the land encroached upon was used as a highway by the public.
    An action may be brought under this section, although the alleged highway was never laid out or entered of record but was established by User.
    An issue as to the actual possession of land, and not as to the right to such possession, does not involve the titlé and may be litigated in a Justice’s Court.
    • Appeal by the defendant, Mortimer Richey, from a judgment of the County Court; of' Steuben county in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 10th day of July, 1900, affirming a judgment rendered by a justice of the peace.
    
      Eli Soule, for the appellant.
    
      Silas Kellogg, for the respondent.
   Spring, J.:

This action was commenced in the Justice’s Court of the town of-West" Union, county of Steuben, September 26,1895, to recover a penalty of the defendant for his neglect in not removing a fence which it is alleged encroached upon a highway of the said town. The action was brought pursuant to section 105, chapter 568 of the Laws of 1890, and which act is known as the Highway Law of the State. The section referred to permits a recovery of twenty-five dollars as a penalty for the neglect or refusal to remove an encroach-, ment in a highway after a prescribed notice has been served. . The facts in this case show practically without dispute that the alleged highway had been used and treated as such uninterruptedly and extensively for forty or fifty years. The question in controversy was not as to the existence of the highway but as to its precise location by the user of the public.. The defendant owned land on the west side of this highway, which was one of the most important in the town, extending in a northeasterly direction from the village of Rexville in said town where the defendant resided. In June, 1895, the defendant extended his fence in front of his premises about eighteen links into what is claimed to be the highway. The result of this was to make his fence jut into the street along the plaintiff’s premises a distance of about sixty-eight links. This fence constituted the encroachment complained of and which the commissioner of highways sought to have the defendant remove, serving upon him the notice required by the section of the Highway Law referred to. The projection of the fence in front of the plaintiff’s premises is uncontroverted. The defendant did not plead title nor give the undertaking essential to make effective this plea. The controversy was, therefore, confined to the use of this highway by the public. If that user embraced the lands taken in by the fence of the defendant then there was an encroachment. If, however, the public easemént as evidenced by travel along the road was outside of this fence the defendant was not liable. The right of possession was not involved or litigated, but the actual possession was the pith of the action and that did not involve the title to the premises. (Little v. Denn, 34 N. Y. 452; Saunders v. Townsend, 26 Hun, 308; Dunster v. Kelly, 110 N. Y. 558.)

There was considerable conflict in the testimony as to the actual territory embraced in the user by the public. The highway was claimed to be three-rods-in-width and wherever--its boundaries-were delineated by fences this width was shown. The traveled track did not extend over the entire three rods. We would not expect to find the ordinary traveled track in the country covering the entire width of the highway. There is, nevertheless, abundant proof to show that whenever the public deemed it desirable to travel along the premises covered by the encroachment, there was no interference with that travel. Several witnesses testified to driving along the land west of the fence erected by the defendant at different times before he cut it off from the highway. There was the same passage over it that is usually found in a country highway which is used to a considerable extent. In working on the highway, ditches were plowed along, the strip west of the line'where the fence now is and even the defendant, when overseer" of the highways, did public work on this part of the alleged highway. There was, therefore, a question of fact for the jury and the County Court had no authority to disturb the judgment on the ground that it, was against the weight of evidence, even if that be true, as strenuously contended by the counsel. (Ludlum v. Couch, 10 App. Div. 603; Northridge v. Astarita, 47 id. 486; Mason v. West, 61 id. 40.)

We do not mean to imply that it is necessary to resort to this technical rule to sustain the judgment on the facts to which reference has been made, for there was a fair, genuine controversy between the parties. The notice of removal was plain and definite in advising the defendant of the extent of his appropriation of the highway, and we are not, therefore, embarrassed by any defect in that instrument.

The alleged highway was never laid out or entered of record and it is urged that this action to recover a penalty for-its encroachment will not lie on that account. This renders necessary an examination of the statutes pertaining to highways by user and encroachments thereupon.

As early as 1817, chapter 43, section 3, provided : “ That when any roads have been used as public highways for twenty years or more, the same shall be taken and deemed as public highways, although no record thereof has been made.”

.And the same revision in substance was carried along in the Revised Statutes (Yol. 1, [4th ed.], pt. 1, chap. 16, tit. 1, art. 4, § 115 [100], p. 1049.) Force has been given to this section in treating highways created by prescription for a period of twenty years the same as those laid out by proceedings under the statute or established by dedication. (City of Cohoes v. D. & H. Canal Co., 134 N, Y. 397; Speir v. Town of New Utrecht, 121 id: 420.)

A provision certainly as general and sweeping in its terms' is contained in the Highway Law (Laws of 1890, chap. 568), section. 100 of which reads in part as follows: “ All lands which shall have been used by the public as a highway for the period of twenty years or more, shall he a highway with the same force and effect as if it had been duly'laid out and recorded as a highway, and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.”

To preserve the integrity of the highways in their entirety for the use'of the public, the commissioners of the highways of the town were early vested with authority to remove obstructions or encroachments summarily, or to maintain an action for a penalty against the offending person. In the Revised Statutes (4th ed., vol. 1, pt. 1, chap. 16, tit. 1, art. 5, § 121 [103] p. 1050), we find the following : “ In every case where a highway shall have been laid out, and the same has been or shall be encroached upon by fences, erected by any occupant of the land through or by which such highway runs, the commissioners of highways of the town shall, if in their opinion it be deemed necessary, order such fences to be removed, so that such highway may be of the breadth originally intended.”

The order referred to in the language quoted was required to be in writing and the occupant was entitled to sixty days’ written notice to remove the encroaching fences and the order must “ specify the breadth of the road originally intended, the extent of the encroachment, and the place or places in which the same shall be.”

By the succeeding section (§ 122 [104] if the occupant failed to comply with the notice he forfeited “the sum of fifty cents for every day after the expiration of that time for which such fences shall continue unremoved.” The right of summary removal at the expense of the occupant by the commissioners of highways was also provided for. The following sections provide a plan at the expense of the occupant for testing whether the encroachment exists.. It will be observed that section 121, in explicit language, limits the removal and forfeiture to a highway “ laid out ” and the notice is confined to the width of the road “ originally intended ” and there was, therefore, no room to extend this penal statute to a highway by prescription. By chapter 125, Laws of 1870, the section quoted was amended so as to relate to highways “ laid out or ascertained, described and entered of record in the town clerk’s office,” thus embracing the roads by. user for twenty years which the commissioners of the highways had included in the recorded highways of the town. It will also be noticed that this amendment gave no authority to remove summarily an encroachment upon a highway by user or to sue the offender for the penalty however well defined may have been the1 boundaries of the road or whatever may have been the length of time or extent of the public user. This author- ■ ity was still confined to a highway of which there was a record in the town clerk’s office.

The courts, in giving effect to the statute quoted, repeatedly held that the action for a penalty for a failure to remove an encroaching fence could only be maintained where the highway was laid out according to law. (Doughty v. Brill, 3 Keyes, 612; Christy, v. Newton, 60 Barb. 332.)

These decisions simply give utterance to the plain meaning of the statuté and any other conclusion would have perverted the language used and have done violence to the manifest intent of its enactment. A radical amendment was made to section 103 (12l), above quoted, by chapter 245, Laws of 1878, which in part is as follows: “ In every case where a highway shall have been laid out or ascertained, described and entered of record in the town clerk’s office, and all roads not recorded, which have been or shall have.been used as.public highways for twenty years or more, and the same have been or shall be obstructed in any manner or encroached upon by fences or otherwise, the commmissioner or commissioners of highways of the town shall, if in his or their opinion it be deemed necessary, order such obstructions or encroachments to be removed, so that such highway may be of breadth originally intended.”

The right of removal after sixty days’ notice was continued in this amendment and section 104 (122), prescribing the forfeiture of fifty cents, also remained unchanged. A new feature was introduced intoíthe.statute.'by. this”enactment* in that"it in. unmistakable■ language comprehended a highway by user. That was the sole purpose of the enactment, and the courts, so far as I have been able to find any reference to the act, appreciated that a departure had been ■made from a policy which had long been operative. (People ex rel. Butler v. Hunting, 39 Hun, 452; Bayles v. Roe, 5 N. Y. Supp. 279; James v. Sammis, 31 N. Y. St. Repr. 192.)

The latter case was affirmed (132 N. Y. 239) and Judge Bradley (at p. 247) recognized, the effect of the enactment in saying: “ Since the amendment in 1878 of the Revised Statutes relating to proceedings to remove-encroachments lias made them applicable. to' public highways,- which'’ have' become such by user, there is no objection to the making use of them in the present case unless, as claimed by him, some vested right existed in the plaintiff to defeat the application of those proceedings at the time they were taken.”

This act continued in force until the passage of the Highway Law {Laws of 1890, chap. 568) and was then repealed with other statutes pertaining to highways. The general law, however, in effect comprises the same principle in recognizing no distinction between a highway created by statute and one by twenty years’ user. (§ 100, ■above quoted.)

The first sentence of section 105 reads : The commissioners of highways shall serve upon the owner or occupant of lands adjoining that part of a highway within their town, in which any obstruction or encroachment may exist, a notice specifying the extent and location of such obstruction or encroachment, and directing such owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice.”

A forfeiture of twenty-five dollars to the town can be enforced by action for a non-compliance with this notice, and the right to remove the encroachment summarily is still vested in the commissioners of highways. The limitation to “ laid out or ascertained ” highways, so long a significant characteristic in the Revised Statutes, is not carried into the present law. Emphasis is further given to this omission in that the notice is not required to specify “ the breadth- of the road originally intended,” which was a mark indicating that application was intended only to laid out or recorded highways. By the Revised Statutes, as already suggested, the occupant charged with infringing upon the highway was permitted to try the question of his alleged encroachment during the sixty days interim, and the mode of procedure was engrafted in the statute. No such practice now obtains, but the occupant is relegated to his ■defense to the action for the penalty or to such other remedies as «re ordinarily available to any aggrieved suitor. The history of this legislation shows for a long period an evident intention to give the right primarily to commissioners of highways to remove encroachments without delay, after notice, or to enforce the penalty for failure to do so only where there was a recorded highway. Then, by the statute of 1878, there was an obvious innovation upon this ■course by extending the authority to highways by user, and, in the codification of the laws relating to highways, we find the restriction is not galvanized into life, but highways of record and by user are-placed on the same plane, and the interference with enero achinen ta-is made applicable to a highway without reference to the manner of its creation. Had it been intended to revive the distinction of these-two classes of highways, so far as the treatment of encroachments-by commissioners of highways is concerned, we should expect a. plain indication of that intention in the statute. While there may be no marked distinction in the language including highways by use-(Laws of 1890, chap. 568, § 100) from that employed in the original statute of 1817, yet the new section does state that a highway by-twenty years’ user shall be a highway with “ the same force and effect-as if it had been duly laid out and recorded as a highway.” . These-words are suggestive when supplemented by section • 105, -which, omits the words restricting its application to a highway laid out or reeorded, but brings all highways within its purview.

The condition which I believe has been brought about by the Legislature is a wholesome one. A highway by twenty years’ user-is entitled to as much consideration as one recorded. It would put a premium upon the greed of an adjacent proprietor to a highway to enable him to push his fence into the street and thus narrow the-space which has been long accessible to the wayfarer, simply because-there is no record of the road. The same strictness in description in the notice to apprise him of the precise extent of the alleged-invasion of the highway still holds good (Town of Sardinia v. Butler, 149 N. Y. 505), and every protection is accorded ’ him which, existed under the Revised Statutes, but in another form.

The limitation of the right to remove encroachments to recorded.’ highways created a factitious discrimination and was adhered to by the courts solely because of the positive requirement of the statute. It was well to dispel the distinction which was founded upon a. fiction and permit the remedy to apply to every highway.

The judgment should be affirmed, with costs to the respondent.

All concurred.

Judgment affirmed, with costs.  