
    
      Ex parte Clapper and others.
    In laying out highways, the commissioners, as wa(l as the judges before whom the matter is brought on appeal, exercise a special and limited jurisdiction; and although it may be presumed till the contrary appear that .they have proceeded legally, yet their acts may be impeached by showing that they exceeded their powers. Per Bronson, J.
    The provision of the statute, (1 R. S. 514, § 57,) prohibiting the laying out of a road through yards or enclosures, extends as well to yards and enclosures neces. sary to the use and enjoyment of a dwelling house, as to those connected with « fixtures or erections for the purposes of trade or manufactures."
    
      On motion for a mandamus to compel commissioners of highways to take the necessary measures for opening a road previously laid out by their predecessors in office, it appeared, that the road was laid out through the door-yard of S., leaving his well, cow-shed and part of his com-crib in the street; that it encroached also upon the garden of another person; that neither of the owners had consented to the proceeding; and that, on appeal to the judges, the determination of the com. missioners was affirmed. Held, that the whole was void on the ground of ex. cess of jurisdiction, and that the mandamus should therefore be denied.
    Even had it appeared that the points upon which jurisdiction depended were pass, ed upon by the commissioners and judges, quere, whether their respective decis. ions would have operated to conclude against collateral impeachment.
    The case of Brittain v. Kinnaird, (1 Brad, Bing. 432,) commented on and doubted.
    JV*. Hill, Jr. for the relators,
    moved for a mandamus to the commissioners of highways of the town of Schaghticoke, requiring them to give notice to the occupants to remove their fences, and to take the other necessary measures for opening a certain highway, which had been laid out by the commissioners of highways in July, 1840, and which, on appeal by Lyman Shelden and Matthias Snyder, had been affirmed by three judges of Rensselaer county in April, 1842. From the affidavits in opposition to the motion it appeared, among other things, that the highway, as laid out, passes through the dooryard of Shelden, and leaves his well, cow-shed and part of his corn-crib in the highway, and that the road was laid out without his consent. The highway also encroaches on the garden and cow-shed of Snyder, and was laid out without his consent. All these erections existed before the road was laid out. The present commissioners stated in their affidavit that they were advised by their counsel and believed, that, by opening the road, they would subject themselves to damages, inasmuch as the road was so laid out by the former commissioners as to encroach upon the yards and fixtures of Shelden and Snyder.
    
      J. Pierson, for the commissioners,
    said, they would be liable to an action of trespass should they proceed to open the road. (1 R. S. 514, § 57 ; Clark v. Phelps, 4 Cowen 190 ; Lansing v. Caswell, 4 Paige, 519, 523.)
    
      
      Hill, in reply, said, the commissioners who laid out the highway and the judges who affirmed their doings must be taken to have adjudged, either that the road was not laid through any buildings or fixtures, or that the owners had consented; and although this was a jurisdictional fact, the decision of the judges especially is conclusive. He cited Brittain v. Kinnaird, (1 Brod. & Bing. 432 ;) Van Steenburgh v. Bigelow, (3 Wend. 42 ;) Barber v. Winslow, (12 Wend. 102 ;) Birdsall v. Phillips, (17 Wend. 464 ;) Cowen & Hill’s Notes to Phil. 1016—20 ; Betts v. Bagley, (12 Pide. 572.)
   By the Court, Bronson, J.

Without the consent of the owner, no road can be laid out through any buildings; or any fixtures or erections for the purposes of trade or manufactures ; or any yards or enclosures necessary to the use and enjoyment thereof.” (1 R. S. 514, § 57.) The words “ yards or enclosures” apply to “ buildings,” as well as to “ fixtures or erections for the purposes of trade.” (See Clark v. Phelps, 4 Cowen, 190 ; Lansing v. Caswell, 4 Paige, 523.) The road passes through the door-yard and buildings of Shelden, and leaves his well in the street. It also encroaches on the cowshed of Snyder. The commissioners of 1840 exceeded their jurisdiction in laying out the road without the consent of the owners of the yard and buildings, and the matter is not helped by the subsequent affirmance of their proceedings by the judges on appeal. The present commissioners would be answerable in an action of trespass, if they should proceed to open the road through the yard and buildings of Shelden and Snyder. (Clark v. Phelps, 4 Cowen, 190.) Clearly we ought not to compel them by mandamus; to commit a trespass.

There is room for doubt whether the case of Brittain v. Kinnaird, (1 Brod. & Bing. 432,) can be supported. But however that may be, the case can be distinguished from the one before us. There the magistrate had directly and necessarily adjudicated upon the fact on which his jurisdiction depended. But it is not so here. It does not appear that either the commissioners or the judges have undertaken to de-cide that there was no door-yard or buildings in the site of the road. These officers in laying out highways exercise a special and limited jurisdiction, and although it may be presumed until the contrary appear that they have acted legally, it is quite clear that their acts may be impeached by showing that they exceeded their powers. I do not think it necessary to refer to books; the principle is a familiar one.

Motion denied.  