
    The Town of Smithtown, Respondent, v. Caroline D. Ely, Appellant.
    
      Action to remove obstructions from a highway — a prior notice cf fifteen clays Jteld to be sufficient.
    
    Section 105 of the Highway Law (Laws of 1890, chap. 568), relative to actions to compel the removal of obstructions upon public highways, providing that before the commencement of the action the owner or occupant of the land shall be served with a notice, “ specifying the extent, and location of such obstruction or encroachment, and directing such owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice,” does not require that a notice of at least sixty days be given; and, in the present case, the court held that a notice of fifteen days was sufficient.
    
      Appeal by the defendant, Caroline D. Ely, from - a judgment of the Süpreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 2d day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      W. P. Knapp, for the appellant.
    
      Howland Miles, for the respondent.
   Hirschberg, J.:

This, action is brought by the commissioners of highways of the town of Smithtown in Suffolk county, in the name of the town, pursuant to the provisions of section 105 of the -Highway Law (Laws of 1890, chap. 568) to compel the defendant to remove a fence which is claimed to encroach upon the southerly side of a public highway. The highway in question was originally laid out by commissioners appointed under an act of the Colonial Legislature, passed June 19, 1703, entitled “An Act for the Laying out, Regulateing, Clearing and preserving Publick Comon highways thro’out this Colony.” (See Colonial Laws of New York [Comp. Stat. Rev. Com.], vol. 1, chap. 131, p. 532.) The highway as laid out commenced at East Hampton and extended westerly the entire length of . Long Island, and has always been known as the “ Middle Country Road.” Its course was not defined. by. any accurate survey, but it is claimed on the plaintiff’s behalf that the highway, as actually constructed and used in front of the defendant’s premises, was indicated by the fence which stood upon the line of the road for very many years until 1873, in which year the old fence was removed and a new one substituted, not upon the line^ but further out into the road. The defendant claims that the new fence was placed upon the line of the old one.

- The verdict of the jury favors the plaintiff’s contention, and while the issue was sharply contested upon conflicting testimony, it was left to the jury to determine as a question of fact, in an excellent and impartial charge, to which no exeéption was taken, and it dannot be said that the conclusion reached is without sufficient support.

It is, however, contended by counsel for the appellant that the colonial act was unconstitutional and void, inasmuch as no provision was made in it for compensation to those whose land should be taken for the purposes of the highway. The argument is based upon the idea expressed in Bradshaw v. Rodgers (20 Johns. 103, 106), to the effect that although no binding constitutional inhibition may exist prohibiting the taking of private property for public purposes without compensation, yet such limitation of power is only “ declaratory of a great and fundamental principle of government, and any law violating that principle must be deemed a nullity, as it is against natural right and justice.” It might be a sufficient answer to this contention to say that no question is presented of the taking •of defendant’s land without compensation. The question is whether the defendant has taken a portion of the land belonging to the public. But in any view, the point has no application to this action, as whatever right to compensation may have originally existed must be deemed to have been waived in the long lapse of time. Indeed, the dispute at the trial was not so much upon the question of the validity as of the identity of the road. But that a road had actually existed by the user of two centuries appears to have been conceded, and that fact would sustain the allegation of the complaint that “ said highway or so much thereof as is embraced within the limits of the town of Smithtown has been, and still is, a lawful public highway,” etc. The charge of the learned trial justice was based upon the fact of the user rather than upon the colonial act. He said : It appears by the testimony, simply stated, that about two centuries ago a highway was laid out through this island. The •description of that highway in 1737 is vague and indefinite, and not •sufficiently clear to enable us to follow it from town to town and from village to village and determine intelligently and accurately just where in the olden times they intended to place its two lines. You have heard a good deal of discussion as to whether the case should not be dismissed because of the vagueness and obscurity of that description. I then stated what I now repeat, that in those times, I assume, the surveyors followed the description; that though there are no courses in this description which would guide us and though there were no monuments placed along the side of the highway that could be depended upon by subsequent surveyors, still, after this description had been made, the road came into existence as either a pathway, a lane or a way, and that.it was traveled over for nearly two hundred years and had been so used for a certain width and between certain towns for a long period of time. Therefore, upon the motion to dismiss I decided, after some hesitation,, that the road as it came into existence after this old description was. made ■—: what'the people believed was intended to be described in the paper and what they used as having been given to them for a highway — was for all purposes the highway about which we have been talking. That means, as you will at once see, what has been used by the people of this town from time immemorial as a highway:” No exception, as I have said, having been taken, this must be assumed, so far as this case is concerned, to be a correct statement, of the law. (Howard v. Ludwig, 171 N. Y. 507, 509.)

Neither can I see any force in the appellant’s claim that there-was no proof of actual user by the public of that portion of the-highway lying southerly of the fence as it now exists. . There is, to-be sure, no proof that any particular individual walked or rode upon that specific portion of the soil, but it is sufficient that the highway between the two lines of fences —- the one on the north and the one-on the south — was for generations open to public travel and used by the public generally.

I find the notice given to the defendant requiring her to remove the fence sufficient under the terms of the statute. Section 105 of the Highway Law {supra) provides that before the commencement of the action the owner or occupant of the land shall be served with a notice “ specifying the extent and location of such obstruction or encroachment, and directing such owmer or occupant to remove the same within a specified time, not more than sixty days after the' service of the notice.” It may be conceded that the notice must be a reasonable one, and it is not claimed that the notice given in this case, fifteen days, was unreasonable. The appellant insists that the statute requires a notice of at least sixty days, on - the authority of Case v. Thompson (6 Wend. 634). The statute under consideration in that case (R. L. 1813, chap. 33, § 39) required that when a road was laid out, the owner or occupant should have sixty days’ notice to remove fences, and the controversy related to whether the same notice was required when a road was altered as when it was first laid out.

Other questions are raised which do not seem to require discussion. The general principles applicable to the practice required in cases of this character appear to have been conformed to as settled •in the case of James v. Sammis (132 N. T. 239).

The judgment and order should be affirmed.

All concurred.

Judgment and order affirmed, with costs.  