
    S. C. Talmage and others, Commissioners of Highways, &c., v. Nathaniel Huntting.
    Before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertained and determined, in some mode prescribed by law.
    The jury which is called to determine the disputed question of an encroachment has no power to-determine the question of the width and boundary of a highway according to the previous dedication or use, which has been neither laid out nor ascertained and described by the commissioners of highways.
    That duty belongs exclusively to the commissioners, and is to be performed by them in an entirely different manner.
    In ascertaining and describing a road which has not been laid out, but has become a highway merely by public use for twenty years, the power of the highway commissioners is limited to ascertaining the boundaries of the road according to the actual use for the twenty years.
    They have no right, in the exercise of this power, to alter and change the boundaries, with reference to present public convenience.
    Under the aqt of the legislature of February 20, 1830, regulating highways and bridges in the counties of Suffolk, Queens, and Kings, authorizing the commissioners of highways to cause such roads as have been laid out, but not sufficiently described, and such as were used as highways for twenty years or over next preceding the 21st of March, 1797, and had been worked and used as such, constantly, for the last six years, but not recorded, to , be ascertained, described, and entered of record in the town clerk’s office, the commissioners have no power “ to survey, stake out, and record such width of highway as appears to be necessary for the public convenience.”
    
      Appeal from the Supreme Court.
    
    The action was brought to recover several penalties alleged to have been incurred by the defendant in refusing to remove a fence erected by him, which was claimed by the plaintiffs to be an encroachment upon the principal road or highway in the village of East Hampton, in the county of Suffolk. The penalty is given by the “ Act regulating highways and bridges in the counties of Suffolk, Kings, and Queens,” usually called the Long Island road act. (Laws of 1830, chap. 56.) The eighty-fifth section declares that “ in every case where a highway has been, or shall be encroached upon by fences or buildings, the commissioners of highways of the town shall, if in their opinion it shall be necessary, order the person or persons who shall have erected the same, or the overseer of the district, to remove such fences or buildings, so that the highway may be of the width originally intended.” It further provides that the order, which is to state the width of the highway and the extent of the encroachment,1 shall be reduced to writing and signed; that notice to remove the obstruction shall be given, and a forfeiture is imposed of fifty cents for each day the obstruction shall remain beyond sixty days after the time specified in the order for removing it.
    If the occupant or owner of the land shall deny the fact of encroachment, a jury is to be summoned by a justice of the peace to inquire into the premises. If they find that there has been an encroachment, they are to make a certificate to that effect, stating certain particulars, including the name of the person who made the encroachment, which is to be filed with the town clerk, and the occupant is to remove his fences immediately, if they were erected within ninety days, and otherwise within sixty days, under a penalty of fifty cents for each day’s neglect. (§§86 to 88.) The penalties are to be sued for by the commissioners of the town. (§ 104.) The complaint sets out an order of the commissioners of the town of East Hampton, dated June 11, 1859, stating that they had ascertained that the defendant had encroached upon the public highway or town street in that town, by erecting a fence in front of his lot extending into the said highway, and encroaching upon it eight feet and nine inches at one end, and eight feet at the other, and particularly describing the width of the street and the place of the encroachment; that the commissioners had served a copy of .the order on the defendant, who had served a notice on them denying the encroachment; that they thereupon applied to a justice, who summoned a jury, who were empanneled and sworn according to the act, and that they made and subscribed a certificate which is set out, and is the same which was proved on the trial. It is dated August 19, 1859, and finds the"fact of the encroachment by the defendant substantially as stated in the notice given by the commissioners. It is stated in it that it was made “without determining the validity of the record of said highway.” The answer denies that the alleged highway is or ever has been a public highway, “ except so far as it became so by being used by the public,” and insists that the commissioners have no jurisdiction to proceed for an encroachment under the statute, except in the case of a road laid out and recorded, or adjudged by the commissioners to have been used for twenty years prior to March 21,1797. It alleges certain illegal conduct of the jury in rejecting evidence, and states that the defendant thereupon brought a certiorari by which the proceedings were removed into the supreme court, where they were affirmed on the 19th of March, 1861, and that by deducting the time during which these proceedings were pending, only forty-eight days have elapsed from the time of signing the certificate and the bringing of this action. If the time during which the certiorari was pending is to be allowed", no penalty had been incurred at the commencement of this suit, as the defendant, under the circumstances proved, had sixty days after the making of the certificate to remove the fence.
    The case was tried before Judge Emott, at the Suffolk circuit, in June, 1862. The plaintiffs gave in evidence from the town records, besides the order of June 11,1859, and the certificate of the jury, an order of the commissioners of highways of the town of East Hampton, datedApril 1st, 1833,for recording the road in question. The introductory part was as follows: “ Whereas, frequent difficulties arise respecting the boundary lines of Town street, in consequence of there being no record of that street, we, William D. Parsons, &c., commissioners of highways of the town of East Hampton, do, after much examination of such testimony as can be collected, and all the circumstances' relating thereto, proceed by virtue of the laws, &c., to survey, stake out and . record such width of highway as appears to be necessary-for the public convenience; therefore,” &c. The remainder of the instrument contains a survey of the highway. They placed, it is stated, a stake in the centre of the road at each of the termini, and at the angles where the course or the width changed, stated the course and distances, -and prescribed the'width on each side of the centre line at the various sections—that distance being from four rods in the narrowest section to four rods and twenty-eight hundredths in the widest—and they annexed a plot and field book to-the document.
    The paroi evidence on the trial related principally to two subjects: the side boundaries of the road as evidenced' by actual use, and the extent to which the line fixed by the foregoing record would coincide with, or diverge from, the boundaries of the road as used and traveled. It appeared that the lots of ground on each side were held under allotments made dui’ing the last and preceding centuries, and prior to 1797; which allotments described the several parcels as abutting on the street, and, inferentially, that the street had been in use from the first settlement of the town. The lines at the sides were not straight; nor were the houses situated uniformly as it respected the Street; and the fences were built in the same irregular manner— running from one house to another. The width of the road, according to this record of 1833, was substantially the same as the space left open by the actual use, but in several' instances buildings, gardens and inclosures were infringed upon,"and in one case a dwelling-house was intersected. As respects the place wheré the alleged encroachment was situated, it appeared that the new fence complained of. was built further towards or into the street than the front fence which existed there before and at the time of the.record of 1833. The evidence upon the user at that place was somewhat contradictory, but the preponderance of proof seemed to be that the new fence was without the defendant’s enclosures as they had always theretofore existed, but that the ground on which it was situated had been used by the defendant and Ms predecessors in the occupation, for piling.wood, depositing ashes and burying potatoes; but that it was still traveled occasionally, when the incumbrances would permit, by foot passengers. One of the commissioners who joined in the order of 1833 was examined as a witness on behalf of the plaintiffs, and testified that their intention was to define the street according to the old boundaries. The facts' respecting the certiorari were admitted to be as stated in the answer. There were no exceptions taken upon the trial; and at the close of the testimony the learned judge directed a verdict for the plaintiffs for $275—that being the amount of the penalty incurred if the case of the plaintiffs was established, and if the certiorari did not affect the case. The general term gave judgment for the defendant, with costs, and the plaintiffs thereupon brought this appeal. The case was submitted on printed briefs.
    
      W. P. Buffett, for the appellants.
    
      George Miller, for the respondent.
   Johnson, J.

There was no legal evidence of any encroachment by the defendant upon the street or Mghway m question. It was not originally a laid out highway, but had become a highway by having been used as. such for over twenty years preceding the 21st of March, 1797. It must be quite obvious to every one, that before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertamed and determined in some mode prescribed by law. The jury wMch is called to determine the disputed questian of an encroachment, has no power to determine the question of the width and boundary of a highway, according to the previous dedication or use, which has been neither laid out nor ascertained and described by the commissioners of highways. That duty belongs exclusively to the commissioners, and is to be performed by them in an entirely different manner. The proceedings in this case to determine the question of the encroachment evidently proceeded upon the assumption that this duty had been performed by the commissioners of highways of the town by the sur vey and order of the 1st April, 1833, which was read in evidence, But it will be seen that this was not such an order or proceeding as the statute authorised. By the first section of the ‘act of February 20, 1830, regulating highways and bridges in the counties of Suffolk, Queens, and Kings (sub, 3), the commissioners are authorized to cause such roads as have been laid out, but not sufficiently described, and such as were used as highways for twenty years or over next preceding the 21st of March, 1797, and had been worked and used as such constantly for the last six years, but not recorded, to be ascertained, described, and entered of record in the town clerk’s office. This the commissioners did not undertake to do by the proceeding and order of 1st April, 1833, referred to. What they attempted to do, as appears upon the face of the order, was “to survey, stake out, and record such width of highway as appears to be necessary for the public convenience.” This they hacino power to do. It was neither laying out a new road, nor ascertaining and describing an existing road not before described and recorded. In ascertaining and describing a road which has not been laid out, but has become a highway merely by public use for twenty years, the power of the highway commissioners is limited to ascertaining the boundaries of the road according to the actual use for the twenty years. They have no right, in the exercise of this power, to alter and change the boundaries, with refer once to present public convenience. (The People v. The Judges of Cortland County, 24 Wend. 491.)

It is true, as suggested by the appellants’ counsel, that the provision of the act in question, in regard to encroachments, is not in terms confined to laid out highways, as in the revised statutes, but extends to every case of a highway encroached upon. The provisions of section eighty-five of the act, however, clearly contemplate the case of a highway, the boundaries of which have been in some way fixed and determined beforehand, as the order must describe the width of the highway and the extent of the encroachment and the place where it exists. This, obviously, could never be done unless the highway had been either laid out, or its boundaries ascertained and described. That had not been done in this case. The order of April 1, 1833, was clearly a nullity, and no foundation had been laid on which proceedings of this kind could be based. In addition to all this, the line on the defendant’s side of the highway, which was attempted to be established by that survey and order, for the public convenience, went through buildings and yards, in entire disregard of the provisions of the act. There was no foundation for the action, and the judgment should be affirmed.'

Wright, Davies, Ingraham and Hogeboom, JJ., were also for affirmance.

Denio, Ch. J.

This was not a case in whicn it was proper to take the determination from the jury by a peremptory direction to give a verdict for the plaintiffs, subject to the opinion of the general term, unless the decision depended wholly upon the documentary evidence produced by the plaintiffs. If there was any disputed question of fact to be determined, such a direction could not legally be given, and it would be a mistake for which the judgment would have to be reversed. (Cobb v. Cornish, 16 N. Y. R. 602 Gilbert v Beach, id. 606;) and see Manning v. Monaghan (23 id. 539), and Clear v. McPherson, therein referred to. If, however, the commissioners’ order, and other written evidence, showed that the road in question was not such a highway as the statutory provisions respecting encroachments would apply to, the plaintiffs ought to have been non-suited. The sending of the case to the general term, after a large amount of written and oral testimony had been given, without any determination as to its effect in law or fact, was not strictly regular, but if the case is such that the plaintiffs could not possibly recover, whatever view might be taken of the paroi evidence, we ought not to reverse the judgment; for on that assumption it would be plain that the plaintiffs could never prevail in the action, and another trial would be a useless proceeding, and produce nothing but unnecessary expense. The plaintiffs appear to have claimed the road to be a highway by force of the record made in 1833, and also on account of its having been used as a highway for a long period of time. The provision in the Long Island act on the subject of highways, made such by user, is as follows: “All pub lie highways now in use, heretofore laid out and allowed by any law of this state, of which a record shall have been made in the office of the clerk of the county or town, and all road's not recorded which have been used as public highways for twenty years or more preceding the twenty-first day of March, 1797, and which shall have been worked and used as such for the last six years, shall- be deemed public highways, but may be altered in conformity to the provisions of this act.” (Laws of 1830, chap. 56, § 82.) By a provision of the first section of the act, unrecorded roads having the characteristics of user above mentioned, are to be “ ascertained, described and entered of record in the town clerk’s office,” by the commissioners of highways, and their order for that purpose is made appeal-able to the judges of the county court. (^ 66.) ■ There are several objections to the plaintiffs’ availing themselves of the record of this road made in the year 1833. In the first place, the certificate of the jury who were called upon to pass upon the question of encroachment, states that they found the fact of encroachment, “ without determining the validity of the record of said highway.” This is equivalent to saying that they disregarded that record in ascertaining the existence and boundary of the street. They no doubt acted upon the evidence of user, and they considered that the passage was a highway, according to the provisions of the eighty-second section of the act. The other objections arise out of the fact that the lines as fixed by the record infringed upon a dwelling-house of long-standing, and upon several other buildings and enclosures, which seem never to have been a part of the old road. I am not of opinion that the commissioners are obliged, in acting under this power, to ascertain and describe an old road, to conform precisely to the traveled track, especially when its boundaries are crooked and irregular, or obscure, as was the case here. .They have, I think, some kind of authority, which is conferred upon them in the provision respecting encroachments, to give the road the course and width originally intended, where the actual user fairly evinces such intention, and where it can be done without interfering with orchards or gardens of ten years’ standing, or with buildings, fixtures or erections, for the purposes of trade or manufacture, or yards necessary to the use and enjoyment thereof. These they are forbidden to touch in laying out a new road without the consent of the. owner (§ 45), and there is good'reason why a like prohibition should apply where they are executing a more limited power. The evidence tended strongly, if not conclusively, to show that these limitations had not been observed in the present instance. (See The People v. The Judges of Cortland County, 24 Wend. 491,) The supreme court was, therefore, right in laying out of view the act of recording pursuant to the order of 1833; and the only question is, therefore, whether proceedings as for an encroachment can be taken where the highway has never been laid out by .public authority, and where it has not been ascertained, described, or entered of record pursuant to the provisions on that subject to which I have referred. If we could look into the evidence in this case to determine such a question, it would appear to me that the defendant’s fence complained of is an encroachment upon the general course of the street as thrown out for public use, and occasionally used at that point. He, no doubt, frequently encumbered it by his wood-piles and potato-holes, but as it was in a wide street, they did not ocQasion much inconvenience, or essentially affect the integrity of the road; and the evidence is positive that when the incumbrances did not exist, it was freely used by foot passengers. But the question is, whether a road which has become a highway by the statute prescription, but which has not been recorded, can be the subject of an encroachment within the statute on which these proceedings are founded. The mandate of the statute is that they shall be deemed public highways. The only one requisite mentioned is, that they shall have been used as public highways for twenty years prior to the date mentioned; and shall have been worked and used for the last six years. There is no condition expressed that they shall have been recorded. That would have been incongruous, for the provision in terms embraces “ all roads not recorded.” The direction to the commissioners to ascertain, describe, and record such roads is found in another part of the act. If a road having the characteristics of user mentioned in this - section is held not to be, a highway for the purpose of the remedy against encroachments, it would be. difficult to maintain that it is one for any purpose. If it may be encroached upon with impunity, it.may be fenced up; it could not be legally included in a road district, and no one could be compelled to perform highway labor upon it; what is called the law of the road would-not apply to it¡ and I do not see but that the owner of the soil might plow and cultivate it; and if it is not embraced in a conveyance, any person might appropriate it to his own use. It was not, I think, the intention of the legislature that such consequences should result from the nonperformance of a statutory direction. It is a familiar principle that many statutory provisions which ought to be observed do not entail upon their non-observance the nullity of the subject to which they relate, where the subject or proceeding can exist and have a certain beneficial effect, notwithstanding the omission. The provision is frequently considered directory merely, and not essential. The legislative policy is, that the public highway should be described in the local records, so that all persons should be advised of their, existence and limits, and so that the officers concerned in the administration should know the subject to which their duties relate. But when the legislature has declared that unrecorded roads possessing certain indicia of notoriety shall, notwithstanding the want of a record, be deemed public highways, all the general regulations of the common, law, and the statutes relating to highways, immediately apply themselves to the subject thus indicated.

The opinion of the supreme court, in the xpresent case, relies upon a former judgment of the same court in Doughty v. Brill (36 Barb. 488), which was decided under the general statutes of the state concerning highways. The provision there made respecting encroachments was, that “in every case where a highway shall have heen laid out, and the same shall have been encroached upon by fences,” &c., the commissioners may order them to be removed, and that a proceeding like that contained in the Long Island statute may be taken in case of refusal. Much stress was properly laid upon the expression that the highway should have been laid out. But whether that qualification was omitted in the section by design or by inadvertence, the circumstance that it is, in fact, omitted, obliges us to construe it as though there was no such qualification; certain other phraseology, common to both statutes, is also relied on in the case referred to. In both it is required that the fences or buildings should be removed, so that the highway may be of the width originally intended. Every highway, whether laid out by authority or existing by prescription, must have the attribute of width; and roads by prescription are based upon the presumption of an original grant or dedication. The word intention may be predicated of such roads, -as well as of those which are laid out by commissioners of highways. It seems to me the use of that term does not strengthen the argument; for there is a presumption that if it were designed to confine the remedy to roads laid out and recorded, a reference to the act of laying out, or to the record of the road, would have been used, rather than a vague reference to the intention. The verdict would apply equally to both descriptions of roads, but not with the same precision to a recorded road. The certiorari. brought to review the proceedings before the jury, if operative for-any purpose, stayed the process of which it formed a part; but when it came to be adjudged that the allegations of error were unfounded, and the certificate was affirmed, it was established that the defendant never had any legal excuse for resisting the order of the commissioners, or for neglecting to remove the encroachment which the. certificate had found to exist. By maintaining the encroachment, in the mean time he incurred the penalties demanded by the act.

If these suggestions should be concurred in by my brethren, the judgment appealed from will be reversed, and a new trial ordered.

ítuLLDsr, J., concurred with Denio, Ch. J. -Selden, J., did not vote.

Judgment affirmed.  