#### David T. Baylis, Jehiel Raynor and John F. Gardner, as Commissioners of Highways, etc., Pl’ffs and Resp’ts, *v.*Austin Roe, Def’t and App’lt.

*(Supreme Court, General Term, Second Departmsnt,*

*Filed May 13, 1889.)*

1. Highways—Obstruction.

A fence or other encroachment upon a highway is an obstruction, and is within the purview of the statute (2 R. S., [6th ed.], 165, § 102), which provides that whosoever shall obstruct any highway shall forfeit for every such offense the sum of five dollars. The public have a right to a free and uninterrupted use of a highway along its entire width,-and anything which abridges this right is an obstruction.

2. Same—Rule as to—Laws 1878, chap. 245—User for twenty years—

Encroachment a nuisance.

The old rule that a road must be technically laid out to prevent an action for an obstruction, was abrogated by chapter 245 of the Laws of 1878. All highways, if they have been used for twenty years, are subject to the penalty, and the former ruling which distinguished between an encroachment and a nuisance, or obstruction, has been set aside, and it is now held that any encroachment upon the highways is a nuisance and may be abated, and the person who maintains it after notice to remove it, is liable to the penalty.

This action is brought by plaintiffs, as commissioners of highways of the town of Brookhaven, Suffolk county, to recover a penalty of five dollars for obstructing a highway in the village of Patchogue.

The road in question was laid out and entered of record on October 2, 1860, upon the application of Austin Roe, the defendant,, and others.

The defendant’s fence was about two feet five inches in the highway. The said road was used, and has continued so to be used, as a public highway of said town continuously since the laying out of the same.

■ The jury found in favor of the plaintiffs, and a judgment having been entered thereon, the defendant appealed.

__ *Wilmot M. Smith,*for app’lt; *Chas. B. Smith,*for resp’ts.

Barnard, P. J.

The old rule that a road might be technically laid out to prevent an action for an obstruction or infringement of a highway, was abrogated by chapter 245, Laws of 1878. All highways, whether laid out or used as highways, for twenty years, were subject to the penalty. The rule laid down in *Peckham v. Henderson*(27 Barb., 207), of an encroachment, not amounting to a public nuisance, is riot in harmony with *Driggs*v. *Phillips*(103 N. Y., 79; 3 N. Y. State Rep., 69). The commissioners in 'this case are held to have jurisdiction over the whole highway, over “ the whole width of the highway as established, and each part of it.”

The obstruction was claimed to be a fence, and the issue of fact was fairly tried. The. whole issue centered in the place where a locust post was fixed as a starting point on the south side of the Coram road. The evidence was conflicting. The record of the road called for a point two hundred and sixty-two feet from the south-east corner of the *711Congregational church. The defendant gave evidence tending to show that the true starting point was a cannon planted in a e with defendant’s fence. The jury found in favor of the true point of beginning, being the one called for by the church, corner.

Ho question was made upon the trial as to the building, beyond the testimony that it was put in the road by one Smith, without authority. He was told to put it on the corner of the Coram and Canaan roads, and he put it beyond. The land was then leased by defendant’s son, and has been ever since at a yearly rent. With the finding of an encroachment as to the fence, this building is also an encroachment. The fence is alone sufficient to uphold the verdict. Ho question is made as to the sufficiency of these orders declaring the encroachment and of the notices to remove the same, nor of the refusal of the defendant so to do.

The judgment should, therefore, be affirmed, with costs.

All concur.