
    Charles T. Parker v. The People.
    
      Highways: Encroachments: Evidence. The statute (Laws of 18B1, p. 153), which fixes a penalty of fifty cents per day for encroachments upon highways, applies only to such as have been laid out by the commissioners; not to those which have become highways by public use.
    The survey of a road, under the provisions of §99f, sub. 3, Compiled Laws. for the purpose of ascertaining and describing it as one which had been used as a highway for twenty years, in order that it may be recorded, is not the laying out of a highway; and the certificate of such survey is inadmissible to prove that the highway described in it had been laid out by the commissioners.
    
      Heard October 25.
    
    
      Decided October 27.
    
    Error to Calhoun Circuit.
    This was an action brought in the name of The People, by the authority of the Supervisor of Albion,’before a justice of the peace, against Charles T. Parker, under the act of 1861, “relative to obstructions and encroachments of highways” (Laws of 1861, p. 158), to recover the penalty prescribed by that act for an encroachment upon a highway; the alleged encroachment consisting of a fence which the defendant insisted was erected before the highway was laid out. The justice rendered a judgment for The People, and the cause was removed by appeal to the Circuit Court for the County of Calhoun. On the trial in the Circuit Court, the plaintiffs, in order to establish the existence of the highway, — it appearing that a road on or near the alleged line had been used as such for over twenty years,— offered in evidence a survey-bill marking the line, and a certificate of the Commissioners of Highways of Albion, that, on the 9th day of November, 1865, they had established a public highway as described in the survey-bill.
    
      To the admission of said survey-bill in evidence the counsel for the defendant objected: “Because it purports to be a survey-bill of a certificate of a road established since the commission of the offense charged as an encroachment. It is not competent for commissioners to lay out a road on their own motion. It purports to establish a road.”
    The court overruled the objection and decided the said survey-bill was competent evidence. To which decision the counsel for the defendant excepted.
    The court charged the jury among other things as follows: “It is necessary for the plaintiffs in this case to prove the existence of a lawful highway and the encroachment on the same by the defendant. The proof of a lawful highway may be in two ways, that is to say, first by user, for more than twenty years, or by its being laid out and established under the statute. Some proof of user has been made in this^case, and proof has been offered going to show the laying out and establishment of the road in question under the statute. The documentary proof produced by the defendant, that is to say, the survey-bill and record of the road, is competent evidence of the existence of the road as a lawful highway, accompanied by that of its identity with the locality in question, and, if the jury believe the witnesses, sufficient proof on that- point. The proof of notice is also competent, and, if the jury believe the testimony in connection with it, is sufficient. The proceedings of the commissioners in relation to the road, so far as this case is concerned, are final and cannot be impeached collaterally.” To which the defendant excepted.
    The jury found a verdict for the plaintiffs, and the judgment entered thereon comes into this court by writ of error.
    
      W. II. Brown, for plaintiff in error.
    
      T. G. Pray, for defendant in error.
   Graves, J.

Parker was sued before a justice for the penalty of fifty cents per day, given by the act of March 11, 1861 (Sess. L. 1861, p. 153), for an alleged encroachment by fence upon a highway. The defendants in error obtained judgment, and Parker appealed. On the trial in the Circuit Court, when The People again obtained judgment, numerous exceptions were taken which are now before us for consideration and judgment.

We shall only notice one or two of these exceptions, most if not all the others being quite unimportant, and several of them being ambiguous and indefinite.

As the penalty sued for is only given for encroachments upon such highways as are “laid out,” the evidence of user admitted on the trial to prove the existence of the way was immaterial and not pertinent to the issue.

The survey-bill and order made by the commissioners, and which the court allowed to be given in evidence, did not show the laying out of a highway.

The evidence was clear and uncontradicted that the' supposed highway had never been laid out, and the survey and order referred to appear to have been made under the statute, which requires the commissioners to ascertain, describe, and enter of record such roads as become highways by public use for the requisite length of time. — § 991, Comp. L., 3d clause.

This statute assumes the existence of ways by prescription, which ought to be described in the town records, and does not contemplate the making of new ways. The survey and order in question were therefore inadmissible as evidence of the laying out of a highway or the existence of a highway laid out by commissioners.

The circuit judge, however, submitted these proceedings to the jury, not only as competent but as conclusive evidence of a highway made by commissioners. This was clearly wrong. The judgment must be reversed.

Campbell, Cu. J. and Cooley, J. concurred.

CimsTiANOY, J. did not sit in this case.  