
    Nicholas A. Alpaugh, Commissioner of Highways, Resp’t, v. Susan M. Bennett, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    Highways—Obstructions.
    In proceedings to determine as to the existence of an encroachment on a highway it appeared that such highway had never been recorded, and that there were no surface indications tending to show that the alleged encroachment stood on any part of a road that had been used continuously for twenty years. The questions litigated were not how far or to what extent the highway had been travelled for twenty years, but were confined to the question where it was originally located and traveled. Reid, that the proceedings were based on an erroneous assumption that the statute gives no power to the commissioner or jury to make any determination beyond the actual occupancy or user.
    Appeal by defendant from a judgment of the county court of Wyoming county, affirming a judgment entered by a justice of the peace of the town of Castile.
    
      Abbott & Abbott, for app’lt; H. W. Smith,, for resp’t.
   Corlett, J.

Previous to 1821, the town of Castile in the county of Wyoming was a part of the town of Perry. There is an highway, never recorded, so far as appears, running nearly east and west in the town of Castile which existed before the formation of the town. There is no record that it ever was laid out.

In Jiffy, 1889, an application was made to summon twelve freeholders to determine whether an encroachrpent had been made upon the highway above referred to. Such proceedings were had that on the 9th day oí August of that year six of the freeholders, found an encroachment by one Hiram Owen, a former occupant. The justice of the peace, before whom the proceedings were had, thereupon rendered judgment in favor of the highway commissioner of the town of Castile against the defendant. From this judgment the defendant appealed to the Wyoming county court, where the judgment was affirmed, and the defendant appealed to-this court. Mo opinion was written by the learned county judge,, but in a letter to the appellant’s counsel he states, in substance,, that sickness had prevented him from examining the case.

On the 15th day of May, 1889, George F. Lucas made a survey of this highway, as follows:

“ Survey of an old road running east and west through lot 87,. Ogden tract, in the town of Castile, and past the farm-house of Prosper Justin. Beginning at two small butternut trees standing together near the centre of the county line road, and near the northeast corner of Prosper Justin’s land; thence north 55° 10’ west, two chains and fifty-five links to a stake bearing S. 3% W. magnetic, 37-J- links from a chestnut tree 21 inches diameter marked, with three hacks on south side and bearing M. 34 W. 62 links from the west corner of a notch chopped on the north side of a chestnut tree 36 inches in diameter, standing near the south bounds of the highway; thence west to the west line of lot 37 to intersect the centre of the highway running west from- near Prosper Justin’s house across lot 38, Ogden tract The above is centre line of the road three rods wide.
“ George F. Lucas, Surveyor.
“Surveyed, May 15, 1889.”

Afterwards, and on the 10th day of July, 1889, the commissioner of highways of the town of Castile made an order based on the above survey, the commencement of which was as follows:

“Whereas, a road has been used as a highway for more than twenty years in the town of Castile, county of Wyoming, M. Y., and, according to the best of my knowledge and belief, said highway was originally duly laid out, the record of which, if any ever existed, has been lost or destroyed, which said road was originally intended to be of the width of three rods.” It then proceeds to recite the survey, and directs the removal of the fence, which was the alleged obstruction, so that the highway might be of the breadth originally intended.

Several witnesses were examined on the trial before the justice. It appeared by the testimony on behalf of the plaintiff that the survey must have been based either on the judgment of the surveyor or information derived from others, or both. The survey seems to have been made without reference to the beaten track at the time of making it. One witness for the plaintiff testified that the fence sought to be removed was formerly about the middle of the old road. He does not testify as to the length of time or extent of travel north of the present fence. Another witness on the part of the plaintiff testified to. the effect that the beaten track had .always been south of the fence sought to be removed, and about where it is at the present time.

A number of witnesses testified on behalf of the defendant, all agreeing that no road had ever been traveled at the place where the fence stands, or north of it, and that in fact there had been occasional moving of the traveled portion further north, so that at the present time the road as used is 'north of where it formerly was.

All the xyitnesses on the part of the defendant testified to the effect that the present fence claimed as an obstruction was built where it now stands-about ten years ago by Hiram Owen, and that it was placed where the old fence stood. There was no evidence on either side tending to show that the road then was, or for many years had been traveled to the extent of the survey.

The contention on the part of the plaintiff was that the survey truly described the location of the old road, and that the fence sought to be removed stood nearly at its center. But there is no evidence on the part of the plaintiff showing how long the road was traveled at the place where the fence stands, or north of it.

The claim on the part of the defendant was that the road had never been traveled as far north as the location of the present fence; that in fact the beaten track 'was formerly further south than it now is; and that the fences on the south side had been gradually moved north. The defendant insists and the evidence produced by her on the trial tended to show that there never was an highway or road at the place occupied 'by her fence or north of it.

The controversy on the trial was mainly limited to the question where the highway formerly was, and whether it was truly described in the survey. There was no controversy as to the fence being owned by the defendant or questioning her occupancy -and possession of the land north of it.

The counsel for the defendant on the trial moved to dismiss the complaint under § 2956 of the Code of Civil Procedure, on the ground that the title to land was in question by the plaintiff’s own showing which was controverted by the defendant. " This was denied.

The plaintiff also claims that the survey is conclusive as to the location of the old road; while the defendant insists that this cannot be so, as the adoption of such a view might deprive the defendant of her land for highway purposes without compensation ; also that it would vest arbitrary power in both the surveyor and -commissioner, and that if the statute conferred any such power it would be unconstitutional.

Public highways are either laid out and recorded, or are made .such by twenty years or more actual travel. 2 R. S. (Banks 7th ed.), 1449, § 100.

Section 101 makes it the duty of commissioners of highways to cause roads to be opened to the width of two rods at least, which they should determine had been used as public highways for twenty years. Snyder v. Pluss, 28 N. Y., 465; Snyder v. Trumpbour, 38 id., 355.

In Talmage v. Huntting, 29 N. Y., 447, it was held that where a jury was empannelled to determine the question of an encroachment it had no power to pass upon the width or boundary of an highway according to previous use or dedication.

In Doughty et al. v. Brill, 36 Barb., 488; affirmed 1 Abb. Ct. of Appeals Dec., 524; 3 Keyes, 612, is was held that proceedings cannot be had to remove an encroachment upon an highway where it had not been laid out.

Where lands are taken for highway purposes, the owner must be paid damages. Cook on Highways, 222 to 234,5th ed.q Chapman et al. v. Grates, 54 N. Y., 182.

Chapter 245 of the Session Laws of 1878, amending 2 R. S. (Banks 7th ed.), 1254, § 103, provides: “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 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.” It then states that in such cases the commissioner shall have power to cause the obstructions to be removed. The mode of proceeding is fully described in the sections which follow.

In Borries v. Horton, 16 Hun, 189, it was held, in substance, that in proceedings by the commissioner to remove obstructions, want of jurisdiction might always be shown to defeat the proceedings.

In Cook v. Covil, 18 Hun, 288, it was held that the power of the commissioner was to ascertain the extent of the user.

In People v. Judges of Cortland County, 24 Wend., 491, it was adjudged that the power of the commissioners was to ascertain the user of the road as it had existed for twenty years, but that they had no authority to create or enlarge. It was further held in that ease that the commissioners exceeded their authority, but that the injured party had no remedy by appeal. It is otherwise now. Secs. 3044, 3045 and 3046 of the Code of Civil Procedure. To the same effect is Matter of City of Yonkers, 117 N. Y., 564; 28 N. Y. State Rep., 676.

It was further held in that case that the commissioners acted ministerially.

In Talmage v. Huntting, above cited, it was decided that the power of the commissioners was limited to ascertaining the boundaries as actually used for twenty years.

In Flack v. Village of Green Island, 33 N. Y. State Rep., 339, the questions of dedication, intent, and the user necessary to establish a highway were determined.

The only power conferred upon the justice’s court and jury is to determine whether an alleged encroachment exists. Sec. 107' of the R. S. above referred to.

The verdict of the jury in the present case follows the statute. The only fact found was that of an encroachment.

Applying the principles above referred to to the facts in the case at bar, it is obvious that all the proceedings, including the trial and verdict, were based upon an erroneous assumption. The survey was made upon the theory that the person making it had full power to determine where the highway was and had been without reference to where it was traveled. The order of the commissioner was based on the same assumption.

The questions litigated upon the trial were not how far or to what extent the alleged highway had been traveled for twenty years, but where it was originally located and traveled.

At the time of the trial there were no surface indications showing or tending to show that the alleged encroachment stood upon any part of a road which had been travelled continuously for twenty years. The plaintiff seems to have believed that the surveyor and commissioner could determine where the road was originally and that all the evidence to controvert the survey or determination of the highway commissioner was immaterial, no matter ho'w far or to what extent it might affect the seeming rights of the owner and occupant.

It is a familiar rule that a statute in derogation of the right of property or which takes away the estate of a citizen must be strictly construed. Washington Cemetery v. P. P. & C. I. P. P. Co., 68 N. Y., 591; McManus v. Gavin, 77 id., 36.

The statute above referred to, which extends the right to remove obstructions or encroachments upon highways which have been used for twenty years, cannot be construed to extend beyond actual user or to confer any power upon the commissioner to make any determination or adjudication beyond such actual occupancy. The amendment cannot have been so intended. Having reference to the cases and statutes affecting the rights of property, it is too clear for argument that the legislature never intended to confer authority upon the commissioner to consider or determine any question except the extent of actual user. The existence of the highway must be based upon the extent of user. The jury has no question to determine except to find whether there has been an encroachment or obstruction upon the road so used.

, To hold to the extent of the plaintiff’s contention in the present case would involve the conferring of power upon the highway commissioner to take lands for highway purposes owned by a citizen without compensation if he saw fit to do so.

It is needless to say that if the legislature had passed an act allowing the taking of lands for highway purposes without compensation it would have been unconstitutional and void. But no such question is involved. The statute was simply intended to allow obstructions and encroachments to be removed upon conceded highways either laid out and recorded or made such by user. The amendment was not made for the purpose of depriving a citizen of his land for highway purposes without compensation.

It follows that the judgment of the county court and justice’s • court must be reversed, with costs.

Dwight, P. J., and Macomber, J., concur  