
    Alexander R. Kerr, Commissioner of Highways, Resp’t, v. Mary Hammer, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    1. Highways—Encroachments.
    A certificate in proceedings to remove an encroachment on a highway stated that at a specified point the encroachment was thirty-six feet, “ which amount of encroachment continues for the distance of about one chain, when it gradually diminishes to twenty-three feet at the angle in said road,” the survey attached to the order of the commissioners ascertaining the road as used showed that the encroachment at the township corner was twenty-seven feet and twenty-three feet at the angle of the road, and that the line to which the fence would have to he removed was a straight one extending from a point twenty-seven feet north of where it then stood nearest the corner to a point twenty-three feet north of where it stood nearest the angle. Held, that the particulars of the encroachment were sufficiently stated.
    
      2. Same.
    A statement in the certificate that the encroachment was made by fences on defendant’s land is a substantial compliance with the requirement that it must state by whom the encroachment was made. After notice to remove an encroachment, its maintenance is equivalent to making it-.
    Appeal from the judgment of the St Lawrence county court, affirming the judgment of a justice’s court of the town of Edwards, entered upon the verdict of a jury of freeholders, adjudging the fence upon the south side of lands occupied by the defendant to be an encroachment upon the highway. The proceeding is instituted pursuant to 1 R S., m. p. 521, §§ 103, etc. (8th ed., 1388).
    
      Karl Bancroft, for app’lt; Wm. Neary, for resp’t.
   Landon, J.

—A highway upon the site of the present one, or within a rod or' two, appears to have existed for a longer time than any of the witnesses had knowledge. One witness, seventy-five years old, had lived within three-fourths of a mile of it' for sixty-five years. In June, 1859, the commissioners of highways of the town of Edwards, presumably in pursuance of § 1, tit. 1. chap. 16, of the first part of the Revised Statutes, 1 R S., m. p, 501 (8th ed., 1347), caused a survey thereof to be made and entered of record in the town clerk’s office. The section says that it shall be the duty of the commissionérs of highways “to cause such of the roads used as highways as shall have been laid out but not sufficiently described, and such as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” The survey thus made and entered of record describes the center line of the highway in question, and the commissioners added the following thereto over their signatures as commissioners:

“ We, the undersigned commissioners of highways of the town of Edwards, do hereby order that the considered distance of each of the lines described in the above survey of the road be the center line, and that the road be three rods in width.” It did not appear that this road had been originally “ laid out but not sufficiently described,” but did appear that it had been “ used for twenty years, but not recorded.”

The appellant is right in asserting that the power of the highway commissioners was limited to ascertaining the boundaries of the road according to its actual use for twenty years; that they had no right to alter or enlarge its boundaries. Ivory v. Town of Deerpark, 116 N. Y., 476; 27 N. Y. State Rep., 643. But whether the commissioners in 1859 altered or enlarged the boundaries of the road as it had been used for the twenty preceding years was a disputable Question of fact upon the trial, and the jury, we must . assume, found against the appellant.

The road in question was described in the survey as beginning. at the corner of four townships. There was formerly a post marking the corner, but it has disappeared, and the evidence was conflicting as to the exact location. The jury found the corner to be as located by the commissioner. We see no ground to reverse this finding.

Objection is made that the certificate made by the jury does not state the particulars of the encroachment, nor by whom made. The statute requires both statements. Sec. 107, 1 R. S., 522 (8th ed., 1389). The certificate adopts the particulars of the encroachment as stated in the order of the commissioner upon which defendant joined the issue which was tried by the jury.

The particulars of the encroachment are exactly given except in the following: thirty-two chains west from the corner of the four townships the encroachment is thirty-six feet, “ which amount of encroachment continues for the distance of about one chain, when it gradually diminishes to twenty-three feet at the angle in said road at the distance of thirty-six chains twenty-five links west from said township corner.”

By referring to the survey which is included in the order of the commissioner attached to the jurors’ verdict, it appears that the encroachment is twenty-seven feet at the township corner, and twenty-three feet at the angle in the road, and that the line to which the defendant’s fence is to be removed is straight, extending from a point twenty-seven feet north of where defendant’s fence stands nearest the corner to twenty-three feet north of where it stands nearest the angle in the road. Such being the case the particulars of the encroachment are so stated as to enable the defendant to proceed to remove it without danger of mistake. ■

The requirement of the statute that the jury must state in- their certificate by whom the encroachmen t was made must be reasonably construed. The certificate states it is made by the fences on la-nds owned and occupied by defendant. A rigid construction of the statute might defeat its purpose. The certificate shows by whom the encroachment is maintained. Its maintenance is in the nature of a nuisance, and after notice to remove, its maintenance is equivalent to making it. We think it is a substantial compliance with the statute.

While the jury were in consultation the justice stepped to the door of their room and asked the constable in charge for a paper belonging to the justice. The foreman then asked him if they could see the evidence, and the justice answered: Ro. Two or three questions were put to him by jurors, to which he replied that he could answer no questions unless the parties were present and agreed. He then withdrew. Ro harm was done or intended. This affirmatively appears, and the verdict should not be disturbed because of the harmless irregularity.

The judgment is affirmed, with costs. .

Learned, P. J., and Mayham, J., concur;  