(78 Hun, 527.)

#### TOWN OF SARDINIA v. BUTLER.

(Supreme Court, General Term, Fifth. Department.

June 20, 1894.)

Highways—Removal of Obstructions—Notice.

Where a fence along the entire width of defendant’s farm is alleged to be an encroachment on the adjoining highway, a notice from the highway commissioner that the fence encroaches on the highway “along the whole of your said land, to the westerly line thereof, at different distances, ranging from seven feet four inches to fifteen feet (as more particularly appears by reference to a map thereof, now in my possession, and which you are at liberty to inspect at any time), and that all the narrow strip or piece of land which lies under such fence and between said fence or fences on the northern Une of said highway is a part of the public highway aforesaid,” is sufficient, under Laws 1890, c. 568, which requires a notice specifying the extent and location of an obstruction on a highway.

Appeal from circuit court, Erie county.

Action by the town of Sardinia against David Butler. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

A. J. Knight, for appellant.

Willard H. Ticknor, for respondent.

LEWIS, J.

This action was originally commenced in a justiceV courfc to recover the penalty provided by section 105 of chapter 568 of the Laws of 1890, to be recovered of a person who shall neglect to remove an encroachment made by him upon a highway after he - shall have been duly notified to remove the same. The defendant interposed the plea of title to the land, and thereupon the justice-court action was discontinued, and this action was thereafter commenced in this court. The defendant was the owner of a farm • upon the north side of the highway in question. The highway was laid out and recorded in the year 1822. It wras worked and used1 as a three-rod road from the time it was opened down to the time - of the commencement of this controversy, in all some 50 or 60 ■ years. The defendant purchased his farm about the year 1866,', and along about 1872 he caused a survey of this highway to be made, and finding, as he supposed, that it was not laid out according to the original survey, h” caused his road fence to be moved to the south, out into the road, along the entire length of his farm, upon a line where he claimed the true survey located the north line of the highway. The highway, as it was originally laid out, was worked and used by the public. Its boundaries along opposite the defendant’s farm had become clearly marked and designated, by *482fences, dwelling houses, and other improvements located along and contiguous to the road. The highway commissioner served upon the defendant a notice to remove the encroachment, which the defendant neglected to do, and this action was commenced. The plaintiff recovered a verdict for the $25 penalty provided for in the act.. The - principal question raised by the defendant is as to the sufficiency of the notice served upon him to remove the encroachment." The statute provides that “the commissioners of highways shall serve upon the owner or occupant of lands adjoining that part of a highway within their town in which any obstruction or encroachment may exist, a notice specifying the extent and location of such obstruction or encroachment and directing such owner or occupant to remove the same within a specified time not more than sixty days after the service of the notice;” and provides a penalty of $25 for a neglect or refusal to remove the obstruction. As stated, the boundaries of the highway had been established for many years on the line of the original survey, and were plainly to be seen. The defendant was well acquainted with them. Believing them to be erroneously located, he caused the fences complained of -to be moved into the highway. The notice served upon him was, in substance, that, the highway commissioner having ascertained that the highway was encroached upon upon the north side along defendant’s lands by a fence or fences erected by him or by some former occupant, and which forms a pari of the inclosure of said land,, he had caused a survey to be made, and ascertained the northerly bounds thereof along the defendant’s lands, “and that said fence or fences encroach upon said highway along the whole of your said land to the westerly line thereof, at different distances ranging from seven feet four inches to fifteen feet (as more particularly appears by reference to a map thereof, ¡now in my possession, and which you are at liberty to inspect at -any time), and that all the narrow strip or piece of land which lies '.under such fence or fences and between said fence or fences and ■the northerly line of said.highway is a part of the public highway .-aforesaid;” and then follows a direction to remove the fence within :20 days. The defendant claims that the extent and location of ithe encroachment were not sufficiently definite. The purpose of the -statute in requiring the notice obviously is to inform the party who "dt is claimed has encroached upon a highway the particulars of the encroachment, so that he can, if he desires, remove it. This notice accurately describes the extent of the encroachment so far as concerns its length. He is told that it extends the whole length of his farm, which was, as appears from the evidence, about 250 rods. The wid.h of the encroachment is stated to be from 7 feet 4 inches to 15 feet. While the notice was somewhat indefinite as to the extent of the encroachment, it would have been impracticable to have accurately mentioned the exact distances for the entire length of the defendant's farm. The defendant was informed by the notice that a map, giving a more particular description of the encroachment, w.as in the hands of the highway commissioner of the town, *483which he was at liberty to see at any time if he wished so to do. This map was produced upon the argument. It contains an accurate, detailed description of the extent of the encroachment. It may be true, as claimed by the counsel, that the defendant was under no legal obligations to visit the commissioner with a view of inspecting the map. He was at liberty, however, so to do, and it is entirely apparent from the record before us that he was not in any manner misled or influenced in his action by the insufficiency of the description in the notice, his claim being that the true location of the north line of the road was upon the line of the fence as built by him. If he had desired to comply with the directions in the notice, he could have done so, for he knew the location of the fence as it was before he moved it. We are of the opinion that the description of the encroachment in the notice, in view of the information the defendant had of the old line, and in view of the information that he was at liberty to obtain by an inspection of the map, should be held, under the circumstances, to have been a compliance with the statute. Under the former act, providing for the notice of obstructions upon highways, the commissioner was required to specify the breadth of the road originally intended, the extent of the obstruction or encroachment, and the place or places where the same shall be. It was held in Spicer v. State, 9 Johns. 358, Doughty v. Brill, 36 Barb. 494, and Mott v. Commissioners, 2 Hill, 472, that a failure to give a description of the encroachment in the notice was fatal to the plaintiff’s right to recover. There is, it will be observed, a difference between the requirements of the notice in the two acts. Under the act of 1890 it is not necessary to mention the width of the road originally intended. Under the former act the extent of the obstruction or encroachment, and the place or places where the same shall be, were required to be stated. Under the present act the notice simply requires a description specifying the extent and location of such encroachment. The complaint alleged that it had become a highway by user for more than 25 years prior to the wrongful acts of the defendant, of the width of at least 3 rods, and that by the constant and continuous use thereof by the public for said period the town had acquired an easement therein, which was well known to the defendant. The defendant, by his answer, denied each and every allegation of the complaint, and further denied that the place or places of said encroachment were a part of a highway, or had ever been a highway; that the fences and alleged obstructions or encroachments along said highway are upon the lands of the defendant, and not within the limits of any highway; and denied that the plaintiff had any right of way thereon. The plaintiff established the existence of the highway by evidence of user simply. The defendant produced record evidence of the survey and laying out of the road in 1822, and thereupon claimed that the burden was on the plaintiff to show by affirmative evidence that the highway was laid out according to the survey; and, further, that, as the plaintiff had alleged in its complaint a highway by user, it could not recover if the jury should find that it was a recorded road. The court held that the presumption *484was, after such a lapse of time, that the highway was upon the-true line as contained in the order, and that the plaintiff could recover under the complaint as well for a recorded highway as for one by user. The rulings, we think, were right.

We have examined the exceptions of the appellant to the admission and rejection of evidence and to the charge of the court, and find nothing in them calling for a reversal of the judgment. The-judgment and order appealed from should be affirmed. All concur.