
    Colden against Thurbur.
    ■?a roadMaid out in 1784, teredbeinnthen' records of the town in 1790, but not signed rmssione'rs"1' tained^tbcT and the com. niissioners of highways, in 1805 taine same road, and caused a certificate thereof, with the description, to be du]y entered of record, and the road,after used asa* pubí fie road for la years: In an action of tres-Clausum fre-git, by the iand°taken for the road, against a person for entering and passing over the same, it was held, that the use of a road as a public highway for 12 years, was prima faeie evidence of its being laid out by proper authority: and that, though the entry of the road as laid out in ¡784, did not conform in all respects with the requisites of the statute, yet the act of the commissioners, in 1805, pursuant to the statute in ¡801, duly constituted the road a public highway, and that the defendant was justified in passing over it.
    This was an action of trespass qutire clausum fregit The cause was tried at the Rensselaer circuit in May, 1807’ before Mr‘ Justice Spencer.
    
    The declaration contained three counts, for threé distinct trespasses, on the same day, in Pittstown. The 1 7 J defendant pleaded the general issue, and gave notice, that the locus in quo was a public highway, Sec.
    
    The breaking down the fence, and passing over the close of the plaintiff, was proved; and it appeared that tbe l^ace wbere the defendant passed through had been used for a public'highway for twelve years. The defendant produced the town clerk, and the book of records of the town kept by him. The book was objected to as An entry evidence, but the objection was overruled. was then read from the book, from which it appeared, . rL. that a road had been laid out (including the locus in quo) hi April or May, 1784. The minute of the entry contained a description of the road, and stated that it was laid ■ . out by the commissioners of highways, but no certificate s'S’ne<^ by them was entered. The records also contained another entry, describing the same road as laid out by tbe commissioners of highways in 1784, and a certificate of the commissioners subjoined, dated the 9th Mai/,1805, that agreeably to the first section oí, the act, they had ascertained it to be a public road, and they describe it as the road heretofore laid out valiere it is now travelled, A verdict was taken for the plaintiff, subject to the opiuioii of the court on a case containing the above facts.'
    Two questions were raised for the consideration of the court. 1. Whether the evidence produced by the defendant made out a justification. 2. Whetherthe minut.es read from the town book were competent evidence.
    
      Van Vechten, for the plaintiff.
    By the “ act to regulate highways,” passed the 8th April, 1801, (Laws of iVs T. vol. 1. p. 588.) there are two modes by which public iioads are to be established : The first is where they are laid out by the commissioners, according to the directions of the act: The second is where they have been used as public highways for 20 years preceding the 2lst March, 1797. in relation to the first mode, the directions of tíie act must .be strictly followed. The commissioners arc to cause the highways laid Gut to be entered of record. The minute of the road as laid out in 1.784, read from tile town book, was in fact entered in 1790, fend has none of the requisites of a record, It does not appear to be an official act. There is no certificate signed by the commissioners. It is a mete entry of a description of a road, arid unless certified and signed by fife commissioners, cannot be considered’ as their act. The entry made in 1790 does not appear to have beeri made by any authority ;pt states merely that the road Was laid out by the Commissioners, in 1784. Therd Was then no legal highway, unless established by a use for 20 years ■ prior to Marckj 1797;'but there’ is no evidence of its being used for a highway longer than 12 years. The commissioners, in 1805, merely ascertain the road as laid out in 1784. They are not authorized to lay out a new road,'but merely to ascertain the old» one jj must appear, then, that there was a former Iegal and existing road, either duly laid out, or used for 20 years, which was to be ascertained.
    
      Russel, contra.-
    The act of 1784 prescribes no particular for mi of a record to be made by the commissioners-It directs, merely that they are to cause the road to be entered on record. No certificate or writing, signed by tire . 3 ° J commissioners, is required. The entry may be made by the town clerk, under their direction-. When found on the books of records, it is to-be intended, as legally entered,from documents furnished by the commissioners. No time is limited for making the entry. But if there were not sufficient evidence of a highway regularly laid out in. 1784, yet the act of the commissioners in 1805, is-conclusive, until reversed on an appeal, or by this court, on certiorari. Can a stranger travelling on-a public road, be liable to an action of trespass, if such road has not been regularly laid out according to the directions of the' act ? If the commissioners acted illegally, the party in--jured should lmve appealed.
    
      Van Vechten, in reply.
    The defendant has justified,- and to- support his justification, he must show the locus-m quo to-be a-highway legally established. In the present case, the defendant cannot complain of any hardship,, for he removed the fence which the defendant had placed-to prevent the passing of travellers- The act of the commissioners, in 1805, cannot be conclusive as to the original road,, but that ought to appear to have been a legal road, otherwise the party whose land has been taken, might be deprived of it, without any compensation.
    
      
      
         ed^L^of^Jf. T. vol. i. p. 105. ■
    
   Thompson, J.

delivered the opinion of the court.-.—

The question- is, whether the- locus in- quo was a public highway,- at the time of the alleged trespass. The proceedings of the commissioners-of highways, in the year 1784, in relation to this road-, were not entered on the town record,, until the year 1790,. nor does it.appear by. what authority the record was then made; This, per-aaps, ought not to be considered a record of a road made ■conformable to all the directions of the then statute. ~ It appears, however, that, in fact, this road had been used a£"a public highway for about twelve years, which ispri-ma facie evidence that it was opened by authority, and to be deemed a public highway within the cases contemplated in the first section of the act of 1801,'for regula-ing highways. This section authorizes the commissioners, in their respective towns, to cause such of the roads as are not already described and recorded, to be ascertained, described, and entered of record. This authority necessarily implies, and presupposes an omission of some of the x’equisites to the establishment of a public highway. The roads referred to must be such as were in use, as public highways, at the time of the passing of the act. And the 'one now in question falls within that description. The commissioners, in 1805, had, therefore, authority to ascertain, describe, and enter on record this road; and this having been done, before the alleged trespass, the locus in quo was duly constituted a public highway, which affords,a complete justification for the defendant.

Judgment for the. defendant. 
      
       By the location of a highway, the public acquire an easement not lawfully to be interrupted by the owner of the land ; but the soil and freehold remain in the owner, for every purpose consistent with this public right: he may maintain ejectment for it, and he may sink a water course below the surface, covering it so that the highway may remain safe and convenient for passengers. Paley v. Chandler, 6 Mass T. R. 454. Vide Galatian v. Gardner, 7 John Rep. 106. Stackpole v. Nealy, 16 Mass. 33. Jackson v. Hathaway, 15 John. 447; Where a road had heen laid out in 1798, and opened and worked within six years thereafter, but apart of it had been fenced up, and the travel turned another way for six years after, and including the 19th March, ■5813, it was held that the part jjthus-fenced ceased tobe a road. Lyon v. Manson, 2 Cowen, 426.
     