James v. Sammis

• Decision Date: 22 March 1892
• Citation: 132 N.Y. 239,30 N.E. 502
• Parties: JAMES v. SAMMIS et al.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 239

30 N.E. 502

JAMES

v.SAMMIS et al.

Court of Appeals of New York, Second Division.

March 22, 1892.

Appeal from supreme court, general term, second department.

Action by David H. James against Isaac Sammis and others. From a judgment entered upon an order of the general term of the supreme court, affirming a judgment entered on report of a referee in favor of defendants, plaintiff appeals. Affirmed.

Charles R. Street, for appellant.

Henry C. Platt, for respondents Sammis, Ritter, and Darling.

N. S. Ackerly, for respondent Smith.

W. B. Codding, for the other respondents.

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 for 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' ship-yard, bounded by a white oak sapling or a stump on the north, and on ye south side of the highway by a maple sapling, so running easterly to Neck path.’ It appears that the location so described is substantially that of the highway in question, but the boundary lines of it as there represented 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 60 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 60 days the commissioners directed the overseer of that road-district to remove 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 40 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 indorsement upon it; and there was no error in its 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, c. 575; Id. 1739, c. 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 the 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 20 years or more, shall be deemed public highways, (1 Rev. St. p. 521, § 100,) and that proceedings may be taken for removal of encroachments and obstructions, (Id. § 103, as amended by Laws 1878, c. 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, c. 14; Laws 1830, c. 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 20 years or more next preceding the 21st 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 20 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, c. 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, c. 6, the General Statutes of the state were extended to those counties. The fence charged to be an encroachment and obstruction in highway had...