
    Edward L. Kelsey, App’lt, v. Robert Burgess, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Highways—Tbesfass.
    In an action for trespass committed by defendant as overseer of highways in removing plaintiff's fences, which were erected across a road, the defendant proved a certificate made by commissioners of highways after the erection of such fences ascertaining and describing the road as a highway, but such certificate did not purport to be based upon a record nor upon an adjudication by the commissioners that there had been twenty years user. The court held the certificate conclusive, and excluded evidence tending to show that the road had not been used as a highway and was not one by use or dedication. Held, error.
    Appeal from judgment m favor of defendant dismissing the complaint
    Action to recover damages for trespass upon plaintiff’s land and removing fences. The defendant in his answer justified, alleging that the locus in quo was a highway and that he entered as overseer of highways to remove an obstruction.
    Appellant proved his title to the land, possession and the entry by respondent and consequent damage, and rested. Thereupon respondent called Richard E. Allen, a commissioner of highways, and was allowed to show, in spite of the appellant’s objections and exceptions, that the commissioners had met in May, 1889, and ascertained that the locus in quo had been used as a highway for many years, and had thereupon caused a survey and record thereof to be made. This witness himself testified that he resided in a distant part of the town and did not know, except, by hearsay, how long the road had been used prior to the time the commissioners made the record of it as above stated, and at that time that there was a fence across it. There was no other-evidence that the premises in question was a highway.
    The respondent then rested, and the appellant offered to show that the locus in quo was not a highway, and the commissioners had no jurisdiction to make the order. This was objected to by the respondent, on the ground that the commissioners’ order ascertaining and describing the road precluded the appellant from showing that the road was not a highway. The court sustained the objection and the appellant excepted. The appellant further offered to prove that there had never been any dedication of the land to the public as a public highway, nor acceptance thereof by the public authorities or by public user, prior to the time when the plaintiff fenced it in. This proof was, upon a similar objection, excluded, and appellant duly excépted. The appellant then requested to be allowed to go to the jury upon the question whether the locus in quo was a highway at the time the commissioners made the order mentioned; but to this a similar objection was made, and the court having denied the request the appellant excepted.
    The court thereupon directed a verdict for the respondent, on the ground that the order of the commissioners ascertaining and describing the road concluded the appellant from contending that it was not a highway, and the jury found accordingly. The appellant duly excepted to this direction of the court.
    
      Henry A. Monfort, for app’lt; James L. Baxter, for resp’t.
   Barnard, P. J.

The road in question was not proven to have been laid out and entered of record as a highway. The plaintiff proved a good title to the land over which the alleged road passed. The road had been used by the public more or less until April, 1889, when the plaintiff built a fence across both ends of the road, but conforming to his boundary lines.

The defendant, acting under the direction of the commissioners of highways, removed the fence, which is the trespass alleged in the complaint

The defendant proved a certificate or order of the commissioners, ascertaining and describing the road as a highway. The court held the certificate conclusive upon the plaintiff that the locus in quo was a highway, and dismissed the complaint.

The commissioners acted under 1R.S., 501, § 1, subd. 3. This subdivision requires the commissioners to ascertain, describe and. enter of record roads which had been laid out, but not sufficiently described, and also roads used for twenty years, but not recorded. The certificate given in evidence did not purport to be based upon a record, nor upon an adjudication by the commissioners that there had been a user of twenty years without record.

The commissioners have not adjudicated upon either branch of the statute, but simply order the road to be ascertained, and “ that said road is hereby ascertained and described.” The certificate did not, therefore, furnish of itself any defense for the trespass.

There is no appeal from this order of the commissioners. People v. The Judges, 24 Wend., 491; Wiggins v. Tallmadge, 11 Barb., 457.

If the road had been used twenty years as a public highway, that will be a defense for the removal of the fence.

The court refused the plaintiff the right to prove that the same had not been used as a highway, and was not a public highway either by use or dedication.

If the certificate had adjudicated the road to have been used for twenty years, it_ was not conclusive. The land owner had the-right to have the fact passed upon by a jury. Wiggins v. Tallmadge, 11 Barb., 457.

The judgment and order refusing new trial should, therefore,, be reversed, and a new trial granted, costs to abide event

Pratt, J., concurs; Dykman, J., not sitting.  