#### Lambert *against*Hoke.

NEW-YORK,

October, 1817.

According to otionepfCthe *highways)*sess 3b c. 33o a whose application a private road is laid out, has the sole and exclusive right to use it, unless the occupant of the land, at the time when it is laid out, signify his intention to make use of it, and may maintain an action of on the ca^e» against the occupant of the land through which it was laid out, or any other person making use of it. * . The proper form of action against a person using a private sdatí^by the party at whose application it was laid out, is trespass on the case, and not trespass. Where, m a justice’s court, the plaintiff brought an action-tif trespass on the case,,.8nd in his declaration fully, set forth his cause of action, to which the defendant pleaded, the defendant cannot afterwards object that the should have been trespass, asd not case,

IN ERROR, on *certiorari*to a justice’s court.

The defendant in error brought an action of trespáss, in the court b.elow, against the plaintiff in error, and declared for a *386trespass and breach of close, in entering upon, and using a private road, laid out across the land of the defendant below, for the benefit of the plaintiff below. The defendant pleaded the general issue. At the trial, it was admitted, that the road had been laid out over the land of the defendant, and regularly recorded, and the plaintiff proved the use of it by the defendant; and also, that at the time when the damages were assessed for laying out the road, the defendant, on being asked by the commissioners, whether he intended to use the road for any purpose, answered in the negative. The defendant then objected to the form of the action, that it should have been trespass on the case, and not trespass, but the objection was disregarded, and a verdict and judgment were rendered for the plaintiff below.

*Per Curiam.*

The 20th section of the “ *act to regulate*highmays,” (2 *R. L.*276.) provides for laying out private roads, and declares, that “ such road, when so laid out, shall be for the use of such applicant or applicants, his or their heirs and assigns ; but not to be converted to any other use or purpose than that of a road: *Provided always,*that the occupant or owner of the land through which such.road shall be laid out, shall not be prevented making use thereof, as a road, if he shall signify his intention of making use of the same, at the time when the jury or commissioners are to ascertain the damages sustained by laying out such road.” According to the true construction of this section, the plaintiff below must be deemed to have the sole and exclusive right to use the road as" a private way. It was laid out upon his application; the defendant disclaimed all intention of using it, and the damages must he presumed to have been assessed accordingly. The plaintiff is solely charged with the expenses of repairing the road; and the use of it by the,defendant’s waggons was an injury, for which the law affords a remedy. The most appropriate action would have been trespass on the case; but the right of objection was waived by the defendant, by his joining issue, and consenting to go to trial on the merits, after being fully apprized of the grounds of the plaintiff’s ¡claim. The judgment must be affirmed.

Judgment affirmed.