
    February 8, 1892.
    Supreme Court-General Term-Second Division.
    PEOPLE v. DENTON FOWLER.
    (43 St. Rep. 415.)
    T. Nuisance—Highways—Encroachments.
    Village trustees, as commissioners of highways, cannot authorize-the erection of a nuisance on the highway or legalize its continuance.
    2. Same—User.
    A highway, established by proof of user for over twenty years, continues such until officially changed.
    Appeal from judgment entered on conviction of defendants of the crime of public nuisance in erecting and maintaining a fence within the limits of a public highway in the village of Haverstraw.
    Irving Brown, for appellants.
    
      Wm. McCauley, Jr., dist. att’y, for respondents.
   BARNARD, P. J.

The indictment charges that the defendants erected and maintained a common nuisance upon Broadway or West street, in the village of Haverstraw. Proof was given tending to show that the defendants about three years before the trial put up a fence, a part of which was eleven feet on the highway named. The defendants offered evidence tending to show that the village trustee® had directed the erection of the fence in question. The offer was properly rejected. The ■trustees are commissioners of highways only, and as such cannot authorize the erection of a nuisance on the highway, or legalize its continuance. No official act of the trustees was offered. The highway was established by proof of user for over twenty years, and it must continue a highway as used until it is officially changed. An oral conversation with some of the trustees will be powerless even upon the question of intent. The wrongful intent is proven by the wrongful act.

The remark of the judge that there was temptation in Haverstraw to encroach on the highways was probably in reference to the existence of clay and sand for bricknmking purposes in that village. When the attention of the judge was called to the remark he at once explained that the offense charged would not he established by 'any temptation to encroach, but only by proof ot the fact.

The conviction and judgment should be affirmed.

DYKMAN and PRATT, JJ., concur.  