Northrop v. Sumney.

and all the subsequent deeds followed the description in the deed from the Holland company. The case comes to this: the land in question belonged to Hilton's heirs. The fence had not been built upon the true line. The parties-Shaw and the defendant-supposed it had been. Shaw sold and conveyed to the defendant; they both supposing the land conveyed extended to the fence, but in the deed the south boundary is "by land heretofore deeded to Clark Hilton." The defendant accepted this deed. He did not require Shaw to specify the fence as the southern boundary. And Shaw only undertook to convey the land as bounded south by Hilton's land.

I have come to the conclusion, with some hesitation, that the defendant is remediless. It is a case where the fence between adjoining owners has not been put upon the true line. While it thus stands, one of the owners conveys his farm, giving as a boundary the line of his neighbor's land. The question, in the absence of adverse possession, &c. remains open for a reconstruction of the fence upon the true line. Such cases are constantly arising, (not when the error is as great as in the present case,) and I am not aware that any action has ever been instituted by a purchaser against his grantor, on the ground of a mistake as to the true line, though both parties saw the actual division fence and supposed it was properly placed upon the line. To permit an action in such a case would, I apprehend, be a source of much litigation, and would be extremely dangerous. The grantor, when he bounds the land which he conveys, by the land of another, does not undertake that the visible division fence is upon the true line, but he leaves the true line to be ascertained. The grantee can always protect himself by requiring a different description, as making the fence the boundary, or leaving it solely to courses and distances. In my opinion the judgment should be affirmed.

[GENESEE GENERAL TERM, May 17, 1858. Grover, Marvin and Davis, Justices.]

PECKHAM US. HENDERSON and others.

Where a public highway originally laid cut six rods in width, was fenced only four rods wide, and had been used as thus fenced for thirty years, and there was no evidence that the public had suffered any annoyance or iuconvenience from the fences; Held that the fences were not a public nuisance, which could be abated as such, by the commissioners of highways. Held also, that the commissioners of highways had no right to enter upon the premises of the person through whose land the road was laid out, and remove the fences, so as to make the road six rods wide; without taking the proper measures to ascertain his damages; and this although they claimed to act under and by virtue of a statute, passed long after the opening of the road, by which they were authorized and empowered to make the road six rods wide; but which statute did not provide for any compensation to land

owners.

Under such circumstances a landowner cannot be disturbed in his possession without making him just compensation.

Where a simple encroachment, not constituting a public nuisance, has existed, in a highway, for twenty years, the premises taken by the encroachment cease to be a part of the highway; and the jury should find that there is no encroachment.

Where an act of the legislature appointed commissioners to lay out a road, and required them to file a map and description of the road, in certain offices; and declared that it should be lawful, from thenceforth, for the inhabitants of certain counties to cut open and improve the said road; Held that the filing of the map was a pre-requisite which must be performed by the commissioners before the inhabitants would have any authority to cut open and improve such road.

OTION for a new trial, upon a case and exceptions, or

dered to be heard in the first instance at a general term. The action was trespass, for breaking and entering the plaintiff's close and removing his fence. The defendants were commissioners of highways of the town of Newfane, in Niagara county, and as such justified under the act of 1852, "to authorize a resurvey of a public highway leading from near the city of Rochester in the county of Monroe, to Lewiston in the county of Niagara, known as the Ridge Road." The facts, and the questions arising thereon, sufficiently appear in the opinion of the court. The judge before whom the cause was tried directed a verdict for the plaintiff.

Peckham v. Henderson.

F. J. Fithian, for the plaintiff.

A. Holmes, for the defendants.

By the Court, MARVIN, J. In 1806 the legislature passed an act appointing commissioners to lay out a road through the county of Genesee, from near the falls on Genesee river, to Lewiston on the Niagara river. The commissioners were to explore and lay out the road at least six rods wide. And it was enacted" that when the said road shall be laid out, it shall be the duty of the said commissioners to file a map and precise description thereof, with their names thereto subscribed, in the office of the clerk of the county of Genesee; and that it shall be lawful from thenceforth for the inhabitants of the said county of Genesee to cut open and improve the said road.”

At the time this act was passed, the Holland Land Company, so called, owned most of the land through which the road was to be laid, The commissioners surveyed out the road by a single line, and November 5, 1806, filed the survey in the office of the clerk of Genesee county. This survey was some half mile south from the locus in quo. The road was so opened that it was used, in 1809, to Lewiston. In 1815 the legislature passed another act, appointing commissioners who were "authorized and empowered to review and make such alterations in the state road leading from the falls on Genesee river to Lewiston, as they in their judgment shall deem beneficial to the public travel. Provided that such alterations shall not materially affect or injure any person settled on said road, or any building or valuable improvement of said road." The commissioners were directed to make a map and file it, with the field notes, in the comptroller's office and in the clerk's office of the counties of Genesee and Niagara, and copies in the towns through which the road should run. "And it shall be lawful from henceforth for the inhabitants of the counties of Genesee and Niagara to improve the said road."

The defendant gave in evidence the field notes of the survey

Peckham v. Henderson.

made by the commissioners under the act of 1815, through the county of Niagara; and it was admitted that this survey was where the road now passes through the plaintiff's farm. No map made by these commissioners was produced.

The plaintiff has title to his farm in fee, including the road, by divers mesne conveyances, from the Holland Land Company. He purchased the farm and entered upon it some 12 or 13 years before the trial. The road, called the Ridge Road, was there, and then fenced on each side as it was at the time the defendants committed the acts complained of. This road was used through the woods as early as 1817, and there were, at that time, no buildings on the road for several miles. The road was only underbrushed out. The fence removed by the defendants was built in 1823. The defendants claimed the right to remove the fence, so as to make the highway six rods wide, under the act of 1852. This act appoints three sets of commissioners, one for each county, Monroe, Orleans and Niagara, to survey and establish so much and such parts of the said highway as is situated within their county, six rods wide, on the route or survey made by the commissioners of 1815. They are allowed to vary the line, and provision is made in certain cases where the line is varied, &c. for compensation to the owner, for damages. The plaintiffs' case, however, does not come within these provisions. The defendants claimed the right to remove the plaintiff's fence so as to make the road six rods wide, and without making him any compensation. It is admitted that the commissioners appointed by the state, and the defendants acting as highway commissioners, have acted regularly, and in accordance with the provisions of the act of 1852. The position of the defendants is that a highway was lawfully laid out six rods wide in 1815; that the public acquired a right to such a road, and that the plaintiff, and those from whom he derived title, have encroached upon the highway ever since 1823; and that such encroachment may now be removed.

Unless the public had such right at the time the statute of VOL. XXVII.

14

Peckham v. Henderson.

1852 was passed, it is not claimed by the defendants that such statute would justify their acts in the premises, as the statute did not provide for compensation, and none has been made to the plaintiff. Waiving, for the present, all objections as to the laying out of the road by the commissioners, in 1815, and assuming that it was laid out six rods wide, and that compensation was made to the owner, in the enhanced value of his adjoining lands, how will the case be then presented? The public opened the road by underbrushing through the forest so that the road could be used. How wide this opening was does not appear. In 1823 this lot was occupied by a purchaser and the fence in question erected, and it remained so for thirty years. The road was fenced out four rods in width and has been used by the public for over thirty years.

The defendants' counsel says that the fence constituted an encroachment, and he assumes that such encroachment was a public nuisance, and then cites authorities to show that the time during which a public nuisance had existed will not constitute a bar to an action or proceeding to abate it. This is so, undoubtedly. A present public nuisance may be abated though it has existed for any length of time. The continuance of a public nuisance is a continual erection of it, and of course statutes of limitation and time have nothing to do with the question. But the nuisance must exist at the time it is sought to be abated. If the thing was a nuisance ten years or five years since, and it has ceased to be such, it cannot be abated as a nuisance. The counsel had assumed that the encroachment, so claimed, was a public nuisance-the very point to be established before the principles, relating to the time of its continuance, can be made applicable. What is a nuisance? Blackstone, (3 Com. 215,) says, "Nuisance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nuisances are of two kinds; public or common nuisances, which affect the public and are an annoyance to all the king's subjects, for which reason we must refer them to the class of public wrongs, or crimes and misdemeanors;