
    David H. James, App’lt, v. Isaac Sammis et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March, 22, 1892.)
    
    1. Highways—Encroachments iiy fence.
    In an action against commissioners of highways for trespass in removing a fence erected in 1869, it appeared that the premises on which it stood had been used as a highway for forty years prior to that time. Held, that upon the extension of the provisions of the Revised Statutes to the Long Island counties by Laws 1865, chap. 6, the road became a public highway. The fence being thereafter erected and the road having become a public highway by user for twenty years the commissioners were justified in removing said fence as an encroachment.
    ‘3. Same—Laws 1830, chap. 56.
    The act of 1830, chap. 56, did not provide that public highways would not be created by twenty years user as such, but merely limited, as there mentioned, the duty of the commissioners to cause them to be entered of record.
    ,'3. Same.
    Where there was an informal statement as to the breadth in the order laying out a road, and the notice did not specify the breadth, but both were on one paper, Held, a compliance with the provision of the statute requiring the specification in the order and notice.
    Appeal from judgment entered upon order of general term vof the supreme court, in the second judicial department, affirming judgment entered on report of a referee in favor of the defendants.
    
      Charles B. Street, for app’lt; Henry C. Platt, for resp’ts Samis, Ritter and Darling; N. S. AcJcerly, for resp’t Smith; W. B. Codding, for the other resp’ts. •
    
      
       Affirming 31 St. Rep., 192.
    
   Bradley, J.

The cause of action alleged is trespass upon the ■plaintiff’s land in the town of Huntington, county of Suffolk, by entering upon it, taking down his fence, and doing other injury to the premises. The-defendants deny the alleged wrongful entry, .and by way of justification allege that the locus in quo was a public highway, and that what they did there was done pursuant to lawful authority in removal of encroachments upon or obstructions within such highway. Whether that defense was sustained by the evidence is the main question requiring consideration. The plaintiff’s premises are bounded on the south by the highway, and its northern boundary is the subject of controversy. The ■earliest evidence on the subject of a highway in that locality was .represented by an order of three commissioners purporting to have been made May 26. 1746, in pursuance of an act of general .assembly, in which it is-stated that they,' “ Commissioners chosen lor the town of Huntington,” laid out “ one highway two rods wide between the land of Thomas Bunce and Edward Baylis on ■the north side, and Alexander Bryan, Jr., on the south side, beginning near the said Baylis’ shipyard, bounded by a white oak sapling or stump on the north, and on ye south side of the highway by a maple sapling, so running easterly to Heck Path.” It appears that the location so described is substantially that of the highway in question, but the boundary lines of it as there repre.seated could not be definitely established by evidence, as the oak and maple saplings did not, within the memory of any of the witnesses, remain to mark the outer lines so described of the road. By several deeds of conveyance of the lands on either side of the highway from a time as early as 1816 it is referred to as a boundary. And evidence of witnesses relating to the situation for a period of sixty years before the time of the alleged trespass tended to prove the location of fences on either side of the highway, and, in reference to them, of certain trees which were referred to for the purpose of identifying the location of the fences prior to 1869, when that on the north side of the highway was moved south.

The fence in the location to which it was changed constituted the alleged encroachment upon the highway or obstruction in it. And with a view to proceedings to cause its removal the commissioners of highways of the town of Huntington, on September 7, 1885, made an order which purported to define and describe the highway. This order, with a map of the highway so described, was made of record in the town. And on March 29, 1886, the-commissioners made a further order describing the encroachment of the fence so moved, etc., and directing its removal. This order, annexed to a notice addressed to him, was served upon the plaintiff, and after the expiration of sixty days the commissioners directed the overseer of that road district to move the fence. It was done pursuant to such instruction under the direction of the overseer. The referee found that the place where this fence was situated was part of a public highway, which had been used as such continuously for at least forty years prior and up to the time when the fence was erected in 1869.- This finding the plaintiff challenged by exception, as he also did the conclusion that the-removal of the fence by the defendants was justified. The order of May 26, 1746, was found among the old records of the town in the proper official custody, and was apparently authenticated by the clerk’s endorsement upon it. And there was no error in it& reception in evidence, assuming it was within the statutory powers-of the commissioners to make such an order. It seems to have been so. (Col. Laws 1732, chap. 575; id., 1739, chap. 686. And so far as they remained in force the colonial statutes were adopted and treated as effectual in this state until altered by the legislature. Const. 1777, art. 35. The order recited that it was made-“in pursuance of an act of general assembly.” It is deemed unnecessary to determine whether, in view of the early period at which the order was made and the subsequent use of the highway, it had the support of presumption that it was duly made, as the question of its reception in evidence was one of order of proof, and no motion founded upon a want of preliminary proceedings; was made to strike it out.

The proceedings taken by tne commissioners to ascertain and define the boundaries of the highway were not had in reference to-that order of 1746, as it seems or may be inferred that they were not then advised of its existence. But as appears by the recital in their order they treated the highway as such by user from 1828, and evidently proceeded in view of the statute which provides that all roads not recorded which have been used as public; highways for twenty years or more shall be deemed public highways , 1 B. S., 521, § 100, and that proceedings may be taken for removal of encroachments and obstructions. Id., § 103, as-amended by Laws 1878, chap. 245.

It is urged on the part of the plaintiff that those statutes were-not effectual to support the proceedings taken by the commissioners because prior to 1864 they had no application to the county of Suffolk, which with the counties of Kings and Queens was in that respect governed by statutes specially applicable to them, Laws 1789; chap. 14; Laws 1830, chap. 56; and that it did not appear that the place where the fence was located was-any part of a public highway when it was erected there in 1869, as the provisions of the latter act (1830; for entering of record highways created by user included those, only, which had been used as such for twenty years or more next preceding the twenty-first day of March, 1797, and which had been worked and used as such constantly for the last six years. If the fence was not then in a public highway the defendants were trespassers and as such liable to the plaintiff. And such result would necessarily follow if the use of the locus in quo as part of a public highway for twenty years next preceding March 21, 1797, was essential to the-defense, as there is no evidence to that effect.

But it may be observed that by Laws 1864, chap. 514, the-statutes before mentioned, specially and exclusively applicable to-those Long Island counties, were repealed, as were also laws on. the subject applicable only to the counties of Suffolk and Queens ; and by Laws 1865, chap. 6, the general statutes of the state were extended to those counties. The fence charged to be an encroachment and obstruction in the highway had not yet been erected. And as the road .had then been used as a public highway for twenty years, it came within and was subject to the provisions of the statute before mentioned, 1 B. S., 521, § 100 ; and was within the force of the statute which made it the duty of the commissioners to cause such of the highways “as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” 1 B„ S., 501, § 1.

The act of 1830 before referred to did not in effect provide that public highways would not be created by twenty years user as such, but merely limited, as there mentioned, the duty of the-commissioners to cause them to be entered of record.

The general act of 1813 went further, and provided that when roads had been used for twenty years or more next preceding the 21st day of March, 1797, they should be taken and deemed as public highways, although no record of them had been piade, and charged the commissioners with the duty of opening to the width of two rods or more all roads which had been so used at that time. 2 B. L., 277, § 24. And until further legislation on the subject the statutory highway by user was only that which had been used as such for twenty years prior to March 21, 1797. Galatian v. Gardner, 7 Johns., 106; People v. Lawson, 17 id., 277. This remained so until 1817, when it was provided “ 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,” Laws 1817, chap. 43, § 3, and this was substantially taken into the Bevised Statutes and has since remained in force. This statutory declaration probably was for its support founded upon the common law doctrine of dedication to the public by presumption (thus made conclusive) arising from acquiescence on the part of the owner in the use of a road as a thoroughfare for twenty years, a period analogous to that of the limitation applicable to incorporeal rights as between persons. 3 Kent’s Com., 451; Gould v. Glass, 19 Barb., 179.

Since the amendment in 1878 of the Revised Statutes, relating to proceedings to remove encroachments has made them applicable to public highways which have become such by user, there is no objection to the making use of them in the present case, -unless, as claimed by him, some vested right existed in the plaintiff to defeat the application of those proceedings at the time they were taken. That contention cannot be supported if the place where the fence was located was a public highway at the time it was erected there in 1869. This statutory -remedy is merely an ■additional one, in the cases to which it was extended, for the protection of highways to the public use, and in which the adjacent ■owner had and could by his wrongful act take no vested right as ■against the public to defeat the remedy, although such particular remedy did not exist at the time he sought to interfere with the public use of some portion of the highway by encroachment and appropriation to his own use.

We have proceeded upon the assumption that the only statutes ^applicable to the highways in the county of Suffolk prior to 1864-5 were those only which related exclusively to those Long Island counties. But, although if that were so it would not in the view taken essentially affect any question in the present case, we think that such was not the situation. It is true as a rule that laws special and local are not deemed repealed by general ■statutes upon the subject without clear manifestation in some manner of such legislativé intent. People v. Quigg, 59 N.Y., 83. And it may be assumed that the provisions of the statutes relating specially to those counties were not superseded by any general legislation, but general statutes consistent with them for purposes for which no provision was made by -the local statutes upon the ■subject of highways may have been effectual there as well as •elsewhere in the state. The provision of the act of 1817 before mentioned, and which became part of the Revised Statutes, declaring the creation of public highways by user, was general and, was applicable to the entire state, subject' to special and local ■statutes with which such provision would not be in harmony. _ It provided for no proceeding, but simply declared that roads which have been or shall have been used as such for twenty years or more shall be deemed public highways. Our attention is called ■to no statute or statutory system relating exclusively to those ■counties upon the subject, by which any reason is furnished why that provision of the Revised Statutes was not applicable alike to them and other portions of the state prior to as well as since 1865. It is clear that prior to 1869 there was a public highway bounded north by the land of which the plaintiff afterwards became the owner, and that it has continued to be such highway.

The remaining questions are whether the fence was within it,, and whether the proceedings taken and had to remove the encroachment were legally effectual for the purpose. There was evidence tending to prove that the road as represented by the location of fences on either side and use for more than twenty years prior to 1869 was at least two rods wide ; and the highway as described by-tlie survey contained in the order of the commissioners of highways and represented by the accompanying map was of the width of two rods. There was also evidence tending to prove that the northern boundary of the highway was no farther south than that described by such survey. This evidence related to a period of upwards of forty years next preceding 1869, and was sufficient to present a question of fact and to warrant the conclusion of the referee that the fence was within the highway and the encroachment such as was described by the survey and represented by the order.

It follows that the facts were such as to permit the successful-application of proceedings for the removal of the encroachment. In conducting them it was essential to their validity that the statute be strictly pursued.

It is insisted by the plaintiff that there was a failure on the-part of the commissioners to do so. The order as well as the notice, to which it was annexed, for removal of the encroachment was addressed to the plaintiff. The statute provides that “ every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroachment- 'and the place and places where the same shall be.” 1E. S., 521, § 103, as amended by Laws 1878, chap. 245. It is urged that the order served did not sufficiently or correctly describe the extent of the encroachment. At one point in the description of it there was an apparent clerical error in representing the encroachment in the order, but it is not seen how this could have had the: effect to mislead the plaintiff, and by reference to the order and the ipap therein referred to, it seems quite clearly that it could not

It is also urged that the notice was defective in that it did not specify the breadth of the road originally intended, the extent, and places of encroachments. The specification in the order of the breadth originally intended was somewhat informal, but. was sufficiently made there. The construction contended for is that it is not sufficient to have the specification in the order, but its repetition in the notice was essential. The cases cited upon that subject do not to that extent support the proposition. The order-containing the specification was annexed to the notice and referred to by it. Both were upon the same paper and practically constituted a single document. This, we think, was a compliance with the provision of the statute requiring the specification in the order and notice.

These views render it unnecessary to proceed to the consideration of the powers of the commissioners, incident to their general care and superintendence of the highways, to remove obstructions in them irrespective of any statutory proceeding, im their application to the present case.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur. 
      
       See 42 St. Rep., 513.
     