
    *Stiles R. Fox v. Josiah Hart.
    The public right to a highway may be lost by non-user.
    But where there has been a continued use of such highway, although its width had been encroached upon by the adjacent owner for eighteen years, the-right is not lost.
    The supervisor may open such road to its full width.
    This was a writ of error to the court of common pleas of Washington county.
    The original action was trespass, in which a verdict was rendered for the defendant.
    On the trial, a bill of exceptions was taken which showed that the plaintiff, “ having proved an actual possession in himself of the close mentioned in his declaration, and an inclosure thereof,, by a rail fence, and further offered evidence to prove the trespasses alleged to have been committed therein by the defendant, and the damages thereby, rested his case; and thereupon the defendant proved that he was supervisor of road district No. 6, in the township of Waterford, in the year 1838, and at the time of the alleged trespass, and that a certain road, running by the plaintiff’s close, was apart of, and within his district; and further offered, and gave in evidence, the plat and record of a road four rods wide (running along the bank of Wolf creek, parallel with plaintiff’s close), surveyed and established by order of the court ■of quarter sessions of said county, in the year 1794 ; and, further, offered evidence tending to prove that the fence of the plaintiff was within the line or width of the said road, as surveyed and platted, four rods wide, as above stated ; and that the defendant, as such supervisor, committed the alleged trespass, in abating the fence of the plaintiff, along and parallel to said road, as the same 'has been used and traveled by the public, and in entering upon the close of the plaintiff to the line of said road, as surveyed, in ■the year 1794.
    *“ And thereupon the plaintiff, to rebut the said evidence, on the part of the defendant, proved by witnesses, that the said road, as the same had been actually opened, used, and traveled by the public, to the said line, claimed by the said defendant, and to which he had so entered upon the close of the plaintiff, and opened the said road. Evidence was also given by the defendant, tending to prove that seventeen or eighteen years ago, the grantor of the plaintiff, and then owner of the close, moved his fence several feet into the said highway, and into a part thereof, which prior to that time had been used by the public as a road; but the defendant, in ■doing the acts complained of, not only moved that fence, but also other fences which stood within the established line of the road, but not within any part of the road which had been used by the public. It was also proved that, by the action of the water of Wolf creek, the road, as traveled by the public, had in some places become inconveniently narrow; and the plaintiff asked the •court to charge the jury, that if they should find, upon the evidence, that the said road was laid out forty years ago, along the bank of the creek, and had been opened and used during all that time, at a width less than the law required the road to be laid out, then, that the supervisor, the defendant, was not authorized to enter upon the adjoining close, and open said road to the width required by the law in force at the time of its establishment; which instruction the court refused to give; to which refusal of the court, so to instruct the jury, the plaintiff, by his counsel, excepted.”
    The errors assigned are:
    1. That the court of common pleas erred in refusing the instruction to the jury, asked for by the plaintiff, in the trial of the said cause in said court, stated in the bill of exceptions.
    2. That the judgment of the court of common pleas, was given for the defendant, when, by the law, etc., the same should have been given for the plaintiff, etc.
    Arios Nye, for plaintiff.
    Goddard & Converse, for defendant.
   *Birchard, J.

This case was supposed to present the question, whether the public right to a road is lost, by the encroachments of an adjacent owner for the period of twenty-one years. We think, however, it may be disposed of without deciding that point. The bill of exceptions does not show an actual adverse possession, by any person for a period of twenty-one years; and therefore the question, whether the public right can be barred by our statute of limitations, does not necessarily arise. Whether the maxim, “ nullum tempus occurrit regi,” is applicable or not to a highway, should be left to be determined when,- by a proper case, it is required.

As the road was laid out in 1794, and a part of its width only was used up to the period when the defendant found it necessary to open it to its full width, it is claimed that the public right to that part, which so remained unoccupied, was lost by non-user.

It is not doubted that a right to a highway may be so lost. The law would raise a presumption of-an extinguishment of the right, when the road had been abandoned for a long period.

But this record shows a continued use of the part of the road left open, and there is nothing to authorize the presumption, that any portion of it had been abandoned or would not be occupied as soon as the public convenience should require. The encroachments of the creek, at the time the transaction complained of occurred, rendered it necessary that the full width of sixty feet should be thrown open. The public had been deprived of a part of the original road for about eighteen years previous, by the encroachments of the adjacent owner. He had no reason to suppose such portion was lost by this encroachment, or the right to it in anywise impaired, nor was it so lost or impaired. The supervisor performed no more than his duty in opening it, and the court of common pleas did right in sustaining him.

Judgment affirmed.  