Spicer v. Slade — 9 Johns. 359

Majority

p. 359

Spicer against Slade.

NEW YORK

Oct. 1812.

Headnote

To bring fauTg'for ordev^of and render the penalties ^^sulate'' ^ i8e.) for an on^the^hígít ™ay’il nf the commismeet, delibe» onthelt" ,egert, en" croachment, and give noty'to°remove éodays^vliich "°tiee ^ ought daily atheS1'e road'orighmh !? ‘«tended, tile extent o£ the encroach» place or places ihe^ai-ty may o£eyTtheonier for removing Ihs fence

IN ERROR, on certiorari, from a justice’s court. Slade brought an action of debt against Spicer, in the court below, for the penalty of 25 dollars. The plaintiff declared that the defendant was the occupant of a certain piece of land in Pittstomn, through, or by which a certain highway runs, and that the commissioners of highways of the town, under the 20th section of the act relative to highways, ordered the defendant to remove his fences, being on the same road, for an encroachment, so that the highway might be of the usual breadth; but that the defendant continued the same fence for sixty days after notice of the order of the commissioners to remove the same, and hath continued the same fence for fifty days since the expiration of the said sixty days, and still continues the same, whereby an action had accrued to the plaintiff to demand and have of the defendant fifty cents for every day the fence had continued, after the said sixty days, See. The defendant ’ . ti pleaded nil debei. At the trial, before a jury, m February, 1811, it was proved, that on the 1st July, 1810, application was made to the commissioners of highways, in Pitisiown, and a jury was summoned to ascertain whether there was any encroachment by the plaintiff, on the highway, between the house of the defendant and the Hosick line. The jury met on the 11th July, and found by their verdict, that there was an encroachment on the highway, J ’ _ _ _ by Slade and Spicer, which report or verdict the commissioners refused to accept, on the ground that the complaint to the commissioners was against Slade (the plaintiff) only. It was also proved, that the commissioners, on the 11th July,. 1810, ordered Spicer, the defendant, to remove his fence, so as not to encroach on the highway; and that the encroachment by the defendant continued a long time afterwards, and down to the time of the trial, in February, 1811. One of the commissioners, a witness for the plaintiff, testified, that he attended with the jury, on the lltli July, and refused to receive their verdict, and that the defendant then confessed that he had encroached on the highway; and that he, as one of the commissioners, ordered the defendant to remove his fence, if he had encroached; and it appeared that the co m missioners did on that day give the defendant notice of the encroachment, and order him to remove his fence. The jury found

p. 360

a verdict for the plaintiff for twenty-five dollars, on which the fus» J tice gave judgment.

R. M. Livingston, for the plaintiff in error.

Buel, contra.

Several objections have been taken to the recovery below, which need not be noticed, since we perceive one which goes to the merits of the case. Before the party can be in default, and liable to the cumulative penalties given by the 20th section of the act to regulate highways, (sess. 24. c. 186.) the commissioners of highways of the town must have given him a previous notice or order of sixty days, to remove his fence. We are of opinion that the requisite order was not made in this case. The words of the statute are, “ Where a highway has been laid out, and the same has been encroached upon by any present or former occupant of the land, through or by which such highway runs, the commissioners of the town shall, if in their opinion it be deemed necessary, order the fences to be removed, so that such highway may be of the breadth originally intended.” If the removal be not made in sixty days after such notice given, the penalties attach. To perform this duty, the commissioners should all meet and deliberate together on the subject of the alleged encroachment ; and then, if they, or a majority of them, should deem it necessary, they are to order the fence to be removed, so that such highway may be of the breadth originally intended. In this case, there does not appear to have been any such meeting, deliberation and decision, any further than what might be inferred from the fact that a witness heard one of the commissioners tell Spicer to remove his fence, that is, if he had encroached on the road or highway; and another witness heard the commissioners order him to remove his fence, so as not to encroach upon the highway; and a third heard them give him notice of the encroachment, and order him to .remove his fence. This order or notice was not sufficiently precise and particular to satisfy the law, and bring the party into default. The breadth of the road originally intended, and the extent of the encroachment by the party upon that breadth, and the place or places where, ought to have been specially stated, so that he might be able to obey the order, and know when he had performed his duty. The whole proceeding in this

p. 361

case was extremely loose and uncertain; and the party ought not to be exposed to penalties, when the order or iiotice is stated so vaguely that he cannot ascertain from it, with any reasonable cer~ ~nty, the situation or extent of his encroachment.

Judgment reversed.