
    MARTIN COLE, Respondent, v. MATTHEW VAN KEUREN, Appellant.
    1 B. S., 501, § 1, sub. 3 — order of commissioners as to a public highway—effect of.
    
    When the commissioners of highways of a town meet, and, it appearing to them that a certain road has been used as a highway for more than twenty years; order it to be ascertained and recorded, such order is not conclusive upon a person claiming that the said highway is a private road, and, that he is the owner of the soil thereof. The statute (1 R. S., 501, § 1, sub. 3), does not authorize the commissioners to create or enlarge, but only to perpetuate,", the evidence of a public right; the fact of dedication depends on the user.
    
    Appeal from a judgment in favor of .the plaintiff, entered upon the verdict of a jury.
    
      
      S. L. Stebbins, for the appellant.
    
      William Lounsbery, for the respondent.
    
      
       People v. Judges of Cortland Co., 24 Wend., 491; Talmage v. Hunting, 39 Barb., 654; affirmed 29 N. Y., 447.
    
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and James, JJ.

James, J.,

dissented.

Judgment affirmed.  