Tucker vs. Rankin, 15 Barb. 471

T. R. Strong, J. The consent of Bushnell, who was the owner of the land included in the highway in question, to the laying out of the highway, having been given, the commissioners o£ highways of the town had authority to lay out the same, without an application to them in writing or the agency of a jury of' freeholders. It is only when the consent of the owner of the land is not obtained, that such an application must be made and a jury called. (1 R. S. 501, 502, § 1, § 2, 513, 514. Noyes v. Chapin, 6 Wend. 461.) A verbal consent of the owner was sufficient. (Baker v.

Braman, 6 Hill, 47, and case last cited.) The fact that but two of the commissioners were present at the survey and signed the paper designated by that name, is not of itself a fatal objection to the validity of their acts. In the absence of evidence to the contrary, it will be presumed the third commissioner met and consulted with them in reference to their proceedings at or before the time the paper was signed; and if he did so the action of the two was valid. (Doughty v. Hope, 1 Comstock, 79. 3 Denio, 598, 249. Downing v. Rugar, 21 Wend. 178. Crocker v. Crane, Id. 211. Miller v. Garlock, 8 Barb. 157.

Woolsey v. Tompkins, 23 Wend. 324, 326.) In addition to this presumption, there is evidence that the road was opened immediately, and worked by the overseer of highways in that district ; that the commissioners were called upon after it was thus worked to examine the work ; that two of them went and examined and accepted it and paid the overseer “ $25, from the town money for cutting out and opening said road and that the road. has ever since been used by the public as a highway. The provision of the statute, (1 R.

IS. 525, ■§ 125,) declaring that “ any two commissioners of highways of any town, may make any order, &e. provided it shall appear in the order filed by them, that all the commissioners of highways of the town met and deliberated on the subject embraced in such order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon,” did not abrogate or change in regard to those officers, the common law rule made in reference to the execution of a power of a public nature by.a majority of the offi-. cers intrusted with it, or the rule of presumption applicable to such cases.

It does not prescribe a form for the order of the commissioners when but two unite in it, the observance of which is to be indispensable to the validity of the order, and the failure to comply with which will render it void, whatever the evidence may be, and however strong, as to the other commissioner having been consulted and acted. The object of the provision was rather to declare, and perhaps enlarge, the common law power of a majority of the commissioners, than to restrict it. (2 R. S. 555, § 27. See notes of the Revisers, 3 R. S. 2d ed. 520.) The view taken of the

section in Fitch v. The Comm’rs, &c. of Kirkland, 22 Wend. 132,) I am satisfied was not well'considered, and is not warranted by the cases cited in support of it. A survey of a single line was sufficient. (People v. Commissioners of Salem, 1 Cowen, 23. Lawton v. Commissioners of Cambridge, 2 Caines, 179. People v. Commissioners of Red-hook, 13 Wend. 310.) The’Writing which the two commissioners signed does not contain a formal order laying out the highway, but it purports to be a survey of a road, describes the center line, and states where the road is to commence and terminate.

It was filed with the town clerk and made, as appears by the bill of exceptions, “ a part of the records of said town.” The signatures of the commissioners, and the placing the writing on file, show that it was intended by them as a survey and order establishing the road, and I think it was a substantial compliance with the statute in respect to incorporating an order in the survey. (1 R. S. 514, § 63.) No particular form was necessary, and the acts of such officers should receive a liberal construction.

Regarding the road as legally laid out, the commissioners in 1849 had jurisdiction to take proceedings for the removal of an alleged encroachment, and their action—the encroachment not having been denied by the occupant in the mode provided by the statute—is conclusive that the encroachment existed. (Bronson v. Mann, 13 John. 460.

Cow. & Hill’s Notes, 1051.) As the encroachment was not removed, the commissioners might properly direct its removal. (Laws of 1840, 246, § 1.) And no question was made as to the authority of the defendant as overseer, to remove it, assuming that the commissioners had such power. (See also Wetmore v. Tracy, (14 Wend. 250.) All the proceedings in respect to the finding of the encroachment, appear to have been regular. The plaintiff did not desire to submit any question of fact to the jury. The motion for a new trial should be denied. Selden, J. concurred. Johnson, J.

I am unable to agree with my brethren in this case. We all fully agree that highway commissioners are only authorized to order the removal of fences as encroachments upon highways, in cases where highways have been laid out according to the statute. The point of disagreement is as to what constitutes a laid out highway, within the meaning of the statute.

The only evidence in this case of the laying out of this road as a highway, was the production on the trial, of a survey of the route of a road, dated March 17, 1835, signed by two of the highway commissioners and the surveyor, which was proved to have been filed in the town clerk’s office, and proof that the two commissioners whose names were affixed to the survey, actually went on in company with the surveyor, and the owner of the premises, and assisted in running the line.

The' road, as appears by the parol proof, was surveyed and marked 'four rods wide, although only the center line is described in the survey. A short time after this the road was opened two rods in width, not on the line of the survey at the point where the fences were ordered to be removed, but near the line. The road as opened was fenced by the owner of the land, and thus the road and the fences have remained about fourteen years, as then actually opened to the public.

The public never had possession of the portion directed to be opened by the order in question, and it remains to be seen whether they acquired and still retain any right to the possession, beyond the two rods actually thrown open and dedicated by the owner, by virtue of these proceedings to lay out a highway, if indeed any such act was ever contemplated by the two commissioners who are aloné shown to have acted in the premises.

The statute (1 R. iS'. 513, § 55) provides that when the commissioners shall lay out any road they shall cause a survey to be made of such road, and shall incorporate such survey in an order, to be signed by them, and to be filed and recorded in the town clerk’s office. Can a road be laid out without such order ? Clearly not. A survey is not sufficient; that is but a preliminary step. The award or judgment of the commissioners is made afterwards, and is embodied in the order, in which the statute directs the survey to be also incorporated.

This order is the record of the determination of the commissioners to lay out the road, and is, in my judgment, the only legitimate evidence of such determination. Until the order is made and signed, the whole proceeding is imperfect, and if never made, all the preceding steps ■which might have authorized the making of the order, had the commissioners determined to make it, are of no validity or avail whatever, by way of divesting the owner of the soil of his rights and conferring them upon the public.

When private property is taken, against the consent of the owner, for the use of the public, by virtue of a statutory proceeding, we should see that at least the essential requirements of the statute have been complied with. I understand my brethren to hold that as ■ this survey was signed by the two commissioners who assisted in making the survey and was caused by them to be filed in the office of the town clerk, it must have been regarded by them as an order, and should be held by the court to be such. But this is confounding the plain and obvious distinctions created and carefully preserved in the statute.

The statute requires first a survey, then an order, in which such survey shall be incorporated, and this order is to be signed by the commissioners, and recorded. ¡Now it seems to me that to say that no order need be made, but that the survey alone may be regarded not only as a survey and an order, but as a survey incorporated in an order, is simply to change the statute, and substitute for its plain, unequivocal requirements, the discretion or the assumed intentions of the commissioners.

The commissioners signing the survey and filing it in the town clerk’s office "was of no consequence, as nothing of the kind is required by statute. Those acts alone neither strengthened the public right nor weakened that of the plaintiff. It is enough that no order was in fact made laying' out a highway, and a constructive order, which the commissioners may or may not have intended to make, or which they may have been ignorant enough to suppose they had made, can scarcely have potency sufficient to oust any one from his hitherto undisturbed possession.

In my opinion no presumptions are to be indulged in favor of the public, against the plaintiff. I think courts should presume that public officers, when acting for the public, intend to do just what their acts amount to in contemplation of law, and if those acts are not sufficient to give the public the rights they seek to acquire, they must begin de novo, and not call upon the court to assist By any loose and liberal construction of their acts.

What the commissioners in this instance did, and all they did, was to make a survey, two of them only—so far as appears—acting, signing this survey, and filing it in the clerk’s office. Had this been done prior to the 14th of April, 1826, it would have been made good by the statute of 1830. (1 R. S. 520, § 98.) ' That

section was framed and passed to cover precisely such a case as this, where a survey only had been filed, and shows that the legislature well understood the difference between a survey and an order. But unfortunately this survey was quite too late for the benefit of the healing virtues of that act, and cannot share in its confirmation of official errors. The legislature had the power to give to imperfect proceedings the same force and effect that belonged to those which fully complied with the requirements of the statute, by a specific enactment.

But courts have no such saving or dispensing power, and should never usurp the functions of the legislature, under the guise of construction. I am clearly of the opinion that this road was never laid out by the commissioners, whatever they may have intended to do ; and that all the right the public had was to the two rods fenced out by the owner, which .operated as a .dedication .to .that width. Consequently that the order of the commissioners to remove the plaintiff’s fence as an encroachment was wholly unauthorized and afforded no protection to the defendant. [Monroe General Term, March 7, 1853.

Selden, Johnson and T. Rt Strong, Justices.] New trial denied.