We think there is nothing in the record to show that the strip of land in question was not left open for the pleasure or convenience of the owner rather than the accommodation of the public; but assuming the act of the owner to be equivocal and consistent with a dedication to the public, it is plain there has been no acceptance on its part, nor such actual user as might take its place. The plaintiffs do not aver acceptance, and the only one of them who testifies, states that he never heard of any dedication of the land. The act relied on as an act of dedication is the setting back by the defendant of her fence and placing trees on the old line. The alleged user is for a highway with her knowledge and consent. We are referred to no evidence of this and find none. An owner of land cannot, by the mere removal of his fence, impose upon the public a strip of land as a street, nor can the public deprive the owner of any right or interest in, or control over it by that circumstance. Here there was nothing more. There was neither an actual gift by the owner of the land, nor a user by the public, no evidence by word, or by any decisive act of an intent even to give or dedicate, and the motion to dismiss the complaint should have been granted.
We are also of opinion that the action is misconceived. It is in equity, and the only relief sought is that the defendant be compelled to remove so much of her fence as she has already restored to its former position, and be restrained by injunction from replacing the rest. The plaintiffs sue as commissioners of highways. The statute has defined their duty and vested *Page 153 them with power to execute it. Upon the plaintiff's theory the defendant has obstructed the highway. The statute prescribes the method of procedure on their part. That she threatens still further to obstruct it can give them no cause of action. If she executes the threat, they have in a proper case the power of summary removal of the fence at her expense, but if the encroachment be denied, the issue must go before a jury. (1 R.S., tit. 1, p. 1, chap. 16, art. 5, as amended by Laws of 1878, chap. 245; Coykendall v. Durkee, 13 Hun, 260.) The plaintiffs can have no remedy by this action, and it is needless, therefore, to grant a new trial.
The judgment should be reversed, and the complaint dismissed, with costs.
All concur.
Judgment accordingly.