In the view which I take of this case, the only point of inquiry is, whether, in an action to recover the penalty given by statute for obstructing a public highway (1 R.S., 521, § 102), evidence of the fact of user by the public of the locus inquo as a highway, although for a period of time less than twenty years, is prima facie sufficient to support the action, all the other essential facts being proved? In my judgment it is sufficient.
If the plaintiff were required, in addition to proving actual user, to show also a perfect legal right to such use, in order to make out a prima facie case, no action of that *Page 461 nature could be maintained in a justice's court against a defendant disputing such right, for the reason that it would involve the title to an easement, which is a species of real property. (6 Wend., 465; 15 id., 338; 19 id., 373; 6 Hill, 342.) It would not be necessary for the defendant to plead title and give an undertaking in order to oust the justice of jurisdiction, for it would necessarily appear from the plaintiff's own showing that the title to real property was in question. (Code, § 54, sub. 2; § 59.) Such a rule would be opposed to the uniform practice of the courts and the profession under the statute referred to, and would tend to much public inconvenience. But it is not the law.
The user by the public is analogous to actual possession by an individual, which is sufficient to maintain an action of trespass quare clausum, without proof of right. (27 Barb., 214; 8 id., 241.)
In the present case, the testimony on the part of the plaintiff showed that the obstruction complained of was placed in a road which had been traveled by the public as a highway more than six years before the time of the trial and more than a year before it was fenced up, and that while it was being so used, it was obstructed by the defendant. This was sufficient evidence of user, and the justice properly denied the motion for a nonsuit.
In answer to the case thus made by the plaintiff, resting on user alone, the defendant offered to prove, not that the locusin quo was not in fact used as a public highway, but that it was not a lawful highway. He thus sought to defend himself by drawing the title in question, which he was precluded from doing, although he had set up title in his answer, he not having put in an undertaking as provided by the statute. (§§ 55 to 58.) The offer was, therefore, properly rejected.
The only portion of defendant's answer which was available to him, was the denial of the complaint, and under that he could only controvert the facts upon which the plaintiff rested his case, to wit, the user and the obstruction. In respect to the former, he offered testimony which was *Page 462 received; as to the latter, he offered none. The case, therefore, was resolved into a single question, whether there was a user in fact? and in respect to that question the verdict is conclusive.
The defendant's counsel insists that the plaintiff was bound to prove that the highway was duly laid out, because he alleged it in his complaint. That position cannot be maintained. It was enough that the plaintiff, keeping within his complaint, proved a good cause of action.
If the defendant had put in an undertaking with his answer, in conformity to the statute, he would have been entitled to a discontinuance of the action before the justice. His answer denied the existence of a lawful road, and the right of the public to use the locus in quo as a highway. It was unlike the pleas in the case of Parker v. Van Houten (7 Wend., 145), and that in Fleet v. Youngs (id., 291), cited by the court below. Those pleas merely set up a freehold in the defendant, without putting in issue the title to the easement, or the right of way. It results from the foregoing views that the judgment of the Supreme Court and that of the County Court should be reversed, and the judgment of the justice should be affirmed.
Judgment accordingly. *Page 463