
    The People against Lawson.
    A road used as wa°™since"fiie year 1777, but sueii,not 'a public highway withmtbemean-ing of the act relative to highways, (sess. 36. ch. 33. s. 24.) so as to render an obstruction of it a nuisance.
    Where the trustees of the village oí Newburgh, by an ordinance duly made, direct a street or road in that village, which had been used as a highway, to be shut up and discontinued, no appeal lies from the order or decision of the trustees to the judges of the Court of Corn-man Pleas; but if such appeal would lie at all, it must be made within forty days after the decision of the trustees.
    THE defendant was indicted at a Court of Oyer and Ter-miner, held in Orange county, the 22d of September, 1817, for a nuisance, in obstructing a street or a public highway, in the village of Newburgh, on the 1st of April, 1817, by erecting a house jn the said highway. The indictment was tried at the ° Court of Oyer and Terminer, held before Mr. Justice Van Ness, the 28th of November, 1818, when a verdict of guilty was taken by consent, subject to the-opinion of the court on all the points of law arising on the case. The jury, however, found, specially, that “ the road in question was not used as a public highway on the 21st of March, 1777,” that fact having been specifically submitted to their decision.
    Many witnesses were examined at the trial, whose evidence was detailed in the case. It appeared that, from about the year 1782, or the close of the revolutionary war, to the 9th of July, 1813, the ground on which the house erected by the defendant stands, was used as a common highway, leading to Iranlnt r's Dock, in the village of JSew burgh. On the 9th of July, 1813, on the petition of Edmund Griswold., part owner of the ground, the trustees of the village passed an ordinance, in due form, ordering that from and after the first day of November, then next, the road or highway ⅝ question should be shut up and discontinued, which order ivas regularly entered on their minutes. The defendant gave in evidence a deed of the premises from the owners of the land to himself, bearing date the 15th of April, 1816. On the 20th of April, IS 16, George Gardner, conceiving himself aggrieved by the order of the trustees of the 9th of July, 1313, appealed therefrom to three judges of the court of Common Pleas of Orange county, and gave notice to the trustees of such appeal.
    On the 25th of April, 1816, the three judges met and heard the appeal. The trustees, by their counsel, attended, and objected to the appeal, on the ground that the judges had no jurisdiction, and that the appeal had not been made within the time required by law. The judges, however, proceeded, and made an order, reversing the order of the trustees, and directed the road to be re-opened, which order of reversal was recorded in the office of the town clerk of Newburgh, and a copy thereof served on the trustees. In the autumn of the same year, the defendant erected several houses across the road in question.
    It was not shown that the road had been originally laid out by public authority; nor did it appear that the order of the trustees, directing the road to be shut up and discontinued, had ever been published, or made known to Gardner, by any express notice, before he made the appeal.
    
      Ihiggles, for the plaintiffs, 
    
    He cited Rex v. Lloyd, 1 Campb. N. P. Rep. 260. 10 Johns. Rep. 236, 237. Act, sms. 40. ch. 43. s. 3. passed 21st of February, 1⅜17. Act, vesting further powers in the 'trustees of the village of New-burgh, passed April 2d, 1813. sess. 36. ch. 116. Act to regulate highways, March 19th, 1813. 2 R. L. 270. sess. 36. ch. 33. s. 36,
    
      
      Oakley, (Attorney-General,) contra,
    He cited 2 R. L. 277. sess. 36. ch. 33. s. 24. I Rev. Stat. 521. § 100,
    
      
       The reporter did not hear the argument.
    
   *Platt, J.,

delivered the opinion of the court.

By the 24th section of the “act to regulate highways,” (19th of March, 1813, 2 R. L. 277. 1 Rev. Stat. 52L ⅜ 100.) it is enacted, that where any roads have been used as public highways, for twenty years next preceding the 21st of March, 1797, the same shall be deemed public highways, although no record thereof has been made.

By the 36th section of the same act it is enacted, that if any person shall conceive himself aggrieved by the determination of “the commissioners of highways,” either in laying out,, altering, or discontinuing any road, it shall be lawful for such person, “within forty days thereafterf to appeal to any three of the judges of the common pleas, who shall have power to decide on such appeal.

By the act vesting further powers in the trustees of the village of Newburgh,” passed the 2d of April, 1813, the trustees are “ appointed commissioners of streets, roads, and highways, within the village of Newburghand they, or any four of them, are vested with “ exclusive power ” to lay out streets, &c., in their discretion ; and “ to shut up, divert, and discontinue” the streets, &c. And the village of Newburgh shall be considered as a town, for all the purposes intended by this act, and by the “act entitled an act to regulate highways,’ ” Ac. (See 1st, 2d, and 3d sections.)

Applying all these statutory provisions to the case now before us, I am of opinion, that the road in question cannot be considered as a public highway, because there is no evidence that it has ever been recorded as such ; and its use as a public highway is not sufficiently ancient to supersede the necessity of showing such record ; for the jury have found that it was not used as a public highway for twenty years next preceding the 21st of March, 1797. If this position be true, it is decisive in favor of the defendant; but if the locus in quo was a public highway, then the case shows, (and it is admitted,) that the trustees of Newburgh, who had authority for that purpose, did regularly and formally abolish and discontinue it; and this would lead us to consider the effect of the order of reversal by the judges, on the appeal.

Upon reviewing all the statutory provisions on the subject, *I incline to the opinion, that no appeal lies from the decisions of the trustees of the village to the judges of the common pleas ; anci that the judges in this case had no jurisdiction.

The act which vests the trustees with the power of laying out and discontinuing streets, &c., no where speaks of any appeal; and I think the words of that act, that the trustees “ shall have the exclusive power,” were intended to render the, corporation of that village independent of the judges, in regard to the regulation of their streets. The right of appeal cannot be supported by analogy or mere implication : it must be expressly conferred, or it cannot exist. Besides, there are many con-sid< rations of policy and expediency against such a controlling power in the judges of the common pleas, as applicable to the streets of such a corporation. If, however, the judges had such appellate power, under the general highway act, that statute is peremptory that the appeal shall be within forty days alter the decision of the commissioners; and here the appeal was not till nearly three years after the decision of the trustees.

The counsel for the people urged upon the consideration of this court, the third section of the act of the 21st of February, 1817, which enacts, “ that when any roads have been used as public highways for twenty years, or more, the same shall be taken and deemed as public highways, although no record thereof has been made,” &c. But a reference to dates will furnish a decisive answer. The road in question, if it ever was a public highway, was shut up and discontinued by the trustees on the 9th of July, 1818 ; and the buildings charged as a nuisance, were erected in the fall of 1816. Now it would be absurd, as well as unjust, and cx post facto, to condemn the defendant for doing an act which was innocent at the time it was done. We cannot allow the subsequent act of the 21st of February, 1817, to have such a retrospective operation. If it was not a public highway when the defendant built his house, he was guilty of no offence ; and the subsequent statute has no application to this case.

*We are, accordingly, of opinion, that the defendant is enti-tied to judgment of acquittal.

Judgment accordingly.  