
    Drake vs. Rogers.
    Where it appeared that a road was from two and a half to three rods wide, that it terminated at A.’s house without connecting with any other road, that it had never been used by the public, and the record on file with the town clerk described it as a “ highway for A., beginning” &c.; held, though it also appeared that for many years it had been included in a road district, the evidence did not authorize the court to pronounce it a public highway, as matter of law, but the question should at least have been submitted to the jury.
    Semble, that this evidence showed the road to be a mere private one, intended for the accommodation of A.
    An obstruction placed in a private road by the owner of the land over which it is laid out, cannot be lawfully removed by one having no right to use the road.
    An appeal from an order of commissioners of highways directing the alteration or discontinuance of a road, does not operate as a stay of proceedings; but the order may be carried into effect pending the appeal. Semble.
    
    So of an appeal from an order laying out a highway, unless it be laid through “ enclosed, cultivated, or improved lands.” Semble.
    
    If, on an order being made discontinuing a highway, a fence be built across it, an appeal subsequently brought will not have the effect of rendering the fence a public nuisance.
    Error to the Jefferson C. P. Drake brought an action of trespass quare clausum fregit against Rogers before a justice of the peace. The defendant pleaded title, and the plaintiff thereupon sued in the C. P. The trespass complained of consisted in removing a fence which the plaintiff put up across a road in the town of LeRoy, Jefferson county ; which fence the defendant removed in the spring of 1840. The principal questions on the trial were, whether the road was a public highway, or a private road, and whether it had been discontinued. The road was laid out in the year 1815, and extended from the Brownville road to the house of Nathan Anthony, a distance of about 200 rods. The intention was to lay the road for the greater part of the distance on the line between two lots; that line being the boundary for a part of the length of the road between lands now owned by the plaintiff on the one side and the defendant on the other. The plaintiff gave evidence tending to show that the road as Opened encroached upon him, and, at the point of connection with the Brownville road, was wholly on his land. This was the place where the plaintiff erected, and the defendant pulled down the fence. The defendant did not own the land on either side of the road at that place. The road was laid through wood land, and the trees were not cut until some years afterwards. The road as finally opened was from two and a half to three rods wide, and terminated at the house of Anthony, without connecting with any other road. The record of the road was as follows : “ Survey of a highway for Nathan Anthony, beginning at a maple tree on his north line opposite his house, thence &c. to the centre of the Brown-ville road ; whole distance two hundred and one and a half rods. Surveyed Sept. 30, 1815.” [Signed by the commissioners and recorded by the town clerk.] The road for many years was either included in one of the road districts, or formed a district by itself. A few years since, one Gale purchased the Anthony lot, and consented that the road should be shut up. The plaintiff built the fence across it in the spring of 1837, and the defendant removed the fence in the spring of 1840.
    On the 23d of November, 1839, the commissioners of highways, upon the certificate of twelve freeholders of the town, made an order discontinuing the road. From this order the defendant appealed on the 7th of December following to Messrs. McICnight, Brown and M’Comber, three of the county judges. Judge McKnight gave notice of a meeting for the 11th of March following, but the other judges did not attend. He then gave a new notice, but in the mean time both of the other judges had gone out of office. The new judges doubted their authority to act, and nothing further was done on the appeal.
    The court charged the jury that, in their opinion, the road was a public highway, that the appeal suspended the right to close it up, and that the defendant had a right to remove the obstruction ou-t of the highway as he had done; and they directed the jury to find a verdict for the defendant. The plaintiff excepted, and a verdict and judgment having been rendered for the defendant, the plaintiff sued out a writ of error.
    J. Mullin, for the plaintiff in error.
    
      John Clarke, for the defendant in error.
   By the Court, Thomson, J.

I think the court below erred in holding this road to be a public highway, or at least in deciding as matter of law that it was a public highway. I infer from the evidence that it was a private road laid out for the benefit of Nathan Anthony, and not for the public. Although in the town record it is called a ££ highway,” yet that word is coupled with others which show that a public highway could not have been intended by the commissioners who laid it out. It is <£ a highway for JYathan Anthony.” It is almost impossible to suppose that the commissioners would have used such an expression if they had intended any thing more than a private road. And then the road terminated at Anthony’s house, without connecting with any other road, and so it remained down to the time of the discontinuance. Although this fact is not conclusive, it goes to confirm the construction which has been given to the record made by the commissioners. It looks as though the commissioners did not regard this as a matter of public interest, but only as a means of letting Anthony out to the Trownville road. To this it may be added, that the1 road was never opened to the proper width of a public highway, but was confined within the prescribed limit of a private road. (1 R. S. 517, § 80 ; 2 R.L. of’ 13, p. 277, ^ 22.) And finally, the road was never used as a public highway. In answer to all this we have the fact that the road has always been included in some highway district. But this proves nothing, for the reason that the commissioners were then, and still are authorized to annex a private road to a highway district. (1 R. S. 507, § 29 ; 2 R. L. of ’13, p. 277, § 21.) I think the road wras private; but if that be matter of doubt, it should have been left to the jury to draw the proper conclusion from the evidence.

If this was a private road, then for all the purposes of a road it belonged to Anthony, his heirs and assigns. It does not appear that the owners of the lands through which the road was laid signified their intention of using it to the jury which assessed the damages ; and if they did not, they have no right to use the road. (1 R. S. 517, § 79, and 2 R. L. of ’13, p. 276, § 20.) Anthony could have maintained an action on the case against them if they used it. (Lambert v. Hoke, 14 John. 383.) If the fence which the plaintiff built across the road was an injury to any one, it was to Anthony, and he alone had a right to remove the obstruction ; for thafence was not a public nuisance which any citizen might abate. But the plaintiff has done no wrong to any one. Gale, who had purchased Antho ny’s farm, consented that the road should be shut up, and that was an end of the matter. In this view of the case it is unnecessary to inquire whether the road has been regularly discontinued by public authority. It is enough that the only persons having any legal interest in the matter have settled it for themselves. .

But if this had once been a public highway, I think the court below was wrong in holding that it had not been discontinued. The road had in fact been shut up by the plaintiff’s fence for more than two years and a half when the commissioners made the order discontinuing the road. The order was executed the moment it was made. From that time the plaintiff’s fence ceased to be a nuisance, and when the defendant entered four or five months afterwards and removed the fence, he was a trespasser, i

But it is said that the defendant’s appeal from the order of the commissioners operated as a stay of proceedings. Should that be granted, I do not see how the appeal, before it was finally determined, could have the effect of undoing that which had already been done. The order had been fully executed fourteen days before the appeal was made, and nothing short of a reversal of the order by the judges could again open the road. Although an appeal or writ of error sometimes stays the proceedings where they are, yet, in the absence of any statutory provision, they never have a retroactive effect, and annul that which has already been done under the order or judgment.

When a public highway is laid out through 66 enclosed, cultivated or improved lands,” the owner must have sixty days notice to remove his fences, and if there has been an appeal, the notice must be given after the decision of the judges has been made. (1 R. S. 520, § 96, 97.) Here is, in effect, a stay of proceedings, and if the commissioners go on and open the road pending the appeal they will be trespassers. (Clark v. Phelps, 4 Cowen, 190.) This was a decision under the 39th section of the act of 1813, which is substantially like the present statute. But when the commissioners lay out a road through any other than “ enclosed, cultivated or improved lands,” or when they alter or discontinue an old road, no provision has been made for a stay of proceedings, and I am inclined to the opinion that the order of the commissioners may be carried into execution pending an appeal. But it is unnecessary to decide that question; for in this case the order of ' the commissioners was executed before the appeal was taken.

Judgment reversed.  