FOURTH DEPARTMENT, JANUARY TERM, 1875. employed to make the copy, and that such copy shall not be ordered until the county judge, or a judge of the Supreme Court, shall certify that it is necessary. This statute is very significant in several particulars. First, as a legislative construction of the existing statute defining the corporate property of counties. If the records in question had always been the corporate property of the counties, a special statute was quite unnecessary to give the boards of supervisors the general charge thereof. But, especially, if the boards of supervisors, though charged with the safe keeping of these records, may not even exercise their own judgment as to when an index should be copied for its preservation, and can order such a copy to be made only on the certificate of a judge that it is necessary, the implication is very strong that they may not order new indexes to be made, without such certificate, and without such necessity, whenever a new system of indexing is brought to their attention, which pleases their fancy. But we are not left to an argument from implication. Both the statutes cited are entirely devoid of provisions, conferring any such power as that contended for, upon the boards of supervisors. We are referred to no other statute containing such provision; and, without such provision, the power does not exist. The order appealed from must be affirmed. SMITH, J., concurs in the result; and he is of the opinion that, whether the title to the records is in the people of the State or the people of the county, or in the board of supervisors, the possession and control of such records belong exclusively to the county clerk; and that the boards of supervisors have no power to interfere with such possession, and cannot authorize any person to use the said records, to make indexes or otherwise, in hostility to such clerk. MULLIN, P. J., dissented. Order affirmed, with costs. FOURTH DEPARTMENT, JANUARY TERM, 1875. CHAUNCEY W. GIBSON, RESPONDENT, 2. MINNIE E. Reference-Exceptions to finding — General conclusion - held to embrace what. An exception to a finding in the report of a referee, will not be sufficient to bring up the question of the admissibility, under the pleadings, of the evidence upon which such finding was based. A general conclusion that the defendant is entitled to judgment for the possession of certain premises, will be held to embrace whatever finding of fact is essential to it; the latter being clearly supported by the evidence and being itself the necessary result of the specific facts already found. APPEAL from a judgment entered on the report of a referee, in an action of ejectment, in which damages were allowed for the detention of the premises, which, it is claimed by appellant, were not properly allowed under the pleadings. At folio 19 of the case, the question was asked: "Do you know how that farm has rented for the past five years?" The question was objected to "as incompetent and improper." The objection was overruled, and an exception taken. Another question of a similar character was asked, objected to as incompetent and improper," and received. 66 John Van Voorhis, for the appellants. E. L. Stevens, for the respondent. DWIGHT, J.: The action was ejectment, and the judgment was for the possession of the premises, with $200 damages for the detention thereof. It is objected now, that there were no appropriate allegations in the complaint to entitle the plaintiff to the latter branch of the relief adjudged. It is true that there were no sufficient allegations in the complaint to entitle the plaintiff to give evidence of the value of the use and occupation of the premises; and had the evidence upon that question been objected to on that ground, the admission would have been error; but such objection was not taken. The question put at folio 19 (to which we are referred) was objected to, only generally, as incompetent and improper, and was not 3 539 24ap487 FOURTH DEPARTMENT, JANUARY TERM, 1875. answered. Substantially the same question was answered at folio 21, but the objection was of the same general character, and did not point to the objection now made. At folio 64 (to which we are also referred) the question was taken without any objection, and at folio 71, the objection stated in the same general form was sustained, and the defendants excepted. In two or three instances, evidence, apparently offered with a view of showing special damage, as by removal of manure, and ploughing up of meadow land, was objected to as not admissible under the pleadings, but that objection was nowhere made to the evidence of value of the use and occupation of the premises. An exception to a finding in the report of the referee, will not suffice to raise a question of this character. Such an objection must be made at the trial, either to the evidence as offered, or at the close of the plaintiff's case, or at the close of the evidence. After the evidence has been received without objection, and the question submitted without objection, it is too late to make the objection in exceptions filed to the report of the referee. There is nothing in the case to show that the referee's attention was ever called to the fact that there was not a sufficient allegation of the matter in question in the complaint. Had the specific objection been made in time, the plaintiff might have had leave to amend his complaint, by the insertion of appropriate allegations to cover the proof. The second objection of the appellants is, that the referee does not find that the plaintiff is the owner of the premises, and entitled to the possession. It is true that this fact is not expressly found. The referee does find that the mortgage (under which the plaintiff claimed) was duly foreclosed, the premises duly sold, and that the plaintiff was the purchaser, and all the other facts necessary to the conclusion that the plaintiff was the owner and entitled to possession of the premises. He also finds, as conclusions of law, "that the plaintiff is entitled to judgment against the defendants for the possession of said premises." It is the well settled rule, that such a general conclusion will be held to embrace whatever finding of fact is essential to it; the latter being clearly supported by the evidence in the case, and being itself the necessary result of the specific facts already found.* * See Dewey v. Supervisors, 4 N. Y. S. C. R., 609, and the cases cited. FOURTH DEPARTMENT, JANUARY TERM, 1875. The only remaining objection is, that the affidavit of sale is not sufficient: 1st. Because it is sworn to before a notary public; 2d. Because it does not show a sale actually made, nor how much of the land was sold. To the first branch of this objection, the act of 1863, in relation to notaries public, is a complete answer. * In respect to the second branch of this objection, it must be said that the affidavit of sale is not as direct and explicit as it might have been, and yet there can be no question that, taken as a whole, it does contain a statement of all the facts required to be stated in such an affidavit, viz., of the fact of sale of the premises described in the notice (annexed); of the time and place at which the same took place; of the sum bid, and the name of the purchaser. † None of the appellants' objections to the judgment being well founded, the judgment must be affirmed, with costs. Present― MULLIN, P. J., SMITH and DWIGHT, JJ. Judgment affirmed; plaintiff to have leave to amend his complaint by inserting a count for use and occupation. THE PEOPLE EX REL. VAN SICKLE v. HENRY Highway-measure of damages in laying out—jury in such proceedings judges of law and fact — Justice of the peace not required to charge jury. In determining the damages sustained by the owner of gypsum upon, and of the right to raise and remove the same from, lands over which a highway is to be laid out, the difference between the value of the claimant's estate or interest without the road, and its value with the road, is the true measure. In statutory proceedings for the reassessment of damages for laying out a highway, the jurors are judges of the law and fact. A justice of the peace is not required to charge the jury in an action tried before him. A COMMON LAW certiorari issued on the petition of Wm. H. Van Sickle, to review proceedings had upon assessment of damages by +2 R. S., 547, § 9. * Laws of 1863, chap. 508. FOURTH DEPARTMENT, JANUARY TERM, 1875. laying out a highway. One James Fitch was the owner of certain gypsum, and the right to remove it from the land over which the highway was laid ont. James R. Cox, for the relator. By the appropriation of land for a highway, the public acquire only the easement, and no interest in the soil, or in the rock below it. (3 Kent's Com., 432, 433, and in many cases cited under notes c and i; Dunham v. Williams, 36 Barb., 136.) Since Fitch is not the owner of the premises, and his damages, if any, are only incidental and consequential, it is quite doubtful whether he is entitled to recover any damages. (People v. Oneida, 19 Wend., 102.) Notwithstanding the highway, Fitch would have the right to dig his plaster at pleasure, upon providing for and protecting the public easement. (Williams v. Kenney, 14 Barb., 629; Cortelyou v. Vun Brundt, 2 Johns., 357; Jackson v. Hathaway, 15 Johns., 447; Galen v. Clyde, 27 Barb., 543; McCarthy v. Syracuse, 46 N. Y., 199.) The justice erred in refusing to instruct the jury as to the law, as requested by the counsel on the part of the town: that Fitch is not deprived of his plaster, nor does the town acquire it; that he will have the right to dig it; that all his damages are the expense he will be subjected to in preserving the highway while digging his plaster. This being the subject debated before the jury, and the justice refusing to instruct them as requested, was equivalent to informing them that the contrary was the law. Assuming, therefore, that Fitch has the right to dig out that particular plaster right away, the question is, not what the plaster is worth, but what damages he will sustain from the inconvenience, if any. E. Wood, for the defendant. It is well settled that there may be two separate freeholds in the same body of earth measured superficially and perpendicularly down toward the center of the earth, a freehold in the superficial soil, and a freehold in mines underneath this, with the right of access to work the same and extract the minerals there found. (Washburn's Easements and Servitudes [2d ed.], pp. 7, 14, 558; Caldwell v. Fulton, 31 Penn., 475; Zinc Co. v. Franklinite Co., 13 N. J., 341, 342; Grubb v. Bayard, 2 Wallace, Jr., 81; Wilkinson v. Proud, 11 Mees. & W., |