The deed from the commissioners of highways to the plaintiffs, merely gave the latter the same rights the grantors had ; and was evidence that the public had received compensation for their interest in the road. According to a recent decision, the plaintiffs, in this respect, succeeded to the rights of the public; and the defendant cannot complain that the highway has been placed in charge of a turnpike company. It is still a public road : and the mode of keeping it in repair is only changed. (Benedict v. Goit, 3 Barb. S. C. Rep. 459.) If, after the plaintiffs had changed their turnpike on to this highway, they had abandoned that part of the road in question, the defendant would have been restored to his former rights. (Hooker v. The Utica and Minden Turnpike Company, 12 Wend. 371.) But the evidence does not sustain that view of the case. Another track had been built alongside of the old one : but the latter had also been repaired, and there is some proof that the latter had also been in use. By the act of incorporation, the road was to be four rods wide, {see the act passed April 1,1799, 2 K.SpR. 415, § 6,) which was more than the width at this place; and the plaintiffs seem to have had only a revocable license from the owner to widen it, upon the opposite side. . If it had appeared that the land in question was more than two rods from the center of the highway, the presumption, even without proof of title, would have been in favor of the defendant. (Woolr. on Ways, 5.)
But I have not been able to find authority to sustain the action of ejectment for this injury. The public had only an easement, and the fee belonged to the defendant as owner. ( Woolr. 5. Cortelyou v. Van Brundt, 2 John. 357. Jackson v. Hathaway, 15 Id. 447. Whitbeck v. Cook, Id. 483. Babcock v. Lamb, *3581 Cowen, 288. Cornell v. Butternuts and Oxford Turn. Co, 25 Wend. 368. 2 Smith’s Lead. Cas. 183, 4, Am. ed.) That being all the public had, the plaintiffs took nothing more.. Had they taken more than an easement, (if that were possible,) they would have had to make compensation to the defendant. The owner may bring trespass or ejectment, as the case may be, against any one who injures the land, or appropriates it to any other use than the servitude. (Goodtitle v. Alker, 1 Burr. 133. Lade v. Shepherd, 2 Stra. 1004. 3 Hill, 567. Cornell v. Butternuts, &c. Turn. Co. 25 Wend. 368. Woolr. 5. 2 Smith’s Lead. Cas. 183, 4, Am. ed.) I do not think this point necessarily arose in the recent case of Adams v. Saratoga and Wash. Railroad Co. (11 Barb. 414.) It is said, one may have ejectment for right of herbage, pro prima tonsura and for a pool or pit of water; and a mine. And it has been held, in this state, that it will lie for a right and privilege to build a dam on a specified place, reserved in a deed. (Jackson v. Buel, 9 John. 298.) But, as a general rule, it cannot be sustained for things that lie merely in grant, not capable of being delivered in execution, as an advowson, rent, common appendant, a water course, a mere grant of a privilege to erect a machine without defining the place. (2 Bac. Ab. 417. Adams on Eject. 16. 3 Bl. 199, n. Runn. on Eject. 25 et seq. 1 Lee’s Dic. 524. Jackson v. May, 16 John. 184. And see Warren v. Wakely, 2 Roll. R. 482; 1 Lill. Pr. R. 677 et seq.; Doe v. Alderson, 1 M. & W. 201.) And in Doe v. Alderson, where the party appeared to defend for a “ certain tin bound,” &c. Parke, B. said to counsel, “ you have no possession of the surface.” One who has a right of way, may maintain case for its obstruction. (Allen v. Osmond, 8 East, 4. 15 Petersd. Ab. 391, n.) Or may abate it; particularly if this can be done without meddling with the soil, or where the injury to the right of way is committed by a stranger. (Woolr. 56. And see Drake v. Rogers, 3 Hill, 604.) But I find no case where he has recovered in ejectment. In Judd v. Leonard, (1 Chip. Vt. Rep. 204,) it was held that ejectment would not lie. And as to public highways the remedy is by indictment, or proceed*359íngs under the statute. (Woolr. 54.) Or by abatement. (Woolr. 52. Renwick v. Morris, 3 Hill, 621; S. C. 7 Id. 575.) Unless a person has sustained special damage, when he may have his action. (Woolr. 53. Myers v. Malcolm, 6 Hill, 292. Baptist Church v. Utica and Schenectady Railroad, 6 Barb. 313.) Perhaps a turnpike company may maintain trespass against a stranger. (Seneca Road Co. v. Auburn and Rochester Railroad Co. 5 Hill, 170.) But the declaration in the case last cited was in the nature of case. And Judge Cowen admitted the general rule, that case was the only remedy for an injury to an incorporeal right; though he cited authorities to show that trespass would lie for" the violent disturbance of another in the use of a franchise. But. as we have seen, the owner of the soil has an absolute right, except the right of passage for the people; and has such a possession that he himself, may bring ejectment. It seems absurd to say that the sheriff may give to the people possession of the land, as against such owner, when all they can do with it is to pass and repass over it. And if a stranger takes possession, we have the additional absurdity, that both, the owner and the people, may bring ejectment.
[Washington Special Term, October 18, 1852.Hand, Justice.]
I think the motion for a nonsuit must be granted.