By the Court
Miller, P. J.The objections urged by the counsel for the defendant to the plaintiff’s right to maintain this action relate almost entirely to the question whether a highway actually existed at the time of the alleged encroachment by the defendant. It is said that there was no highway by dedication or use, nor was any lawfully laid out as required by the Revised Statutes.
The evidence as to use and dedication of a highway was certainly very slight. The proof shows that on the 5 th of June, 1869, the road was opened by the overseer by cutting down trees and brush and the removal of a brush fence. A pair of bars were put temporarily where the brush fence had been. The next day the defendant obstructed the road by drawing brush and saplings across it. On the twelfth of June they were removed by order of the commissioner. On the nineteenth of June they were again on the road and removed. On the next day two teams passed over the road and the road was open, and there were wagon tracks there. There was no other testimony as to the use of the road, and such as was given amounts to merely a history of a struggle between the commissioner and the defendant as to the opening of the road, with no sufficient evidence of its use or dedication to entitle the plaintiff to maintain his action on that ground alone. The plaintiff’s right to recover must, therefore, depend upon the question whether the highway was lawfully laid out in accordance with the provisions of the statute. It is said that there was not sufficient notice given of the meeting of the freeholders, as required by law, inasmuch as the notices were not posted at three of the most public places of the town, at least six days before the meeting of the freeholders. (1 R. S., § 59, p. 51.) This point was not distinctly made upon the trial. The finding of the referee is, *322generally, that the application and proceedings were in manner and form as prescribed by the statute, and that the commissioner properly laid out the highway. Although the defendant excepts to the finding alleged to be contained in the general finding as to the notices, and to the conclusion of law that the highway was legally laid out and opened, and assumes that the referee ruled that such was the case notwithstanding notices were not posted as required by law; yet as no request was made to find specially on the subject, the point taken is not available except under the general exception to the finding that the highway was not lawfully laid out. As to this, the evidence shows'that notices were posted in three places, and as all presumptions are in favor of the judgment, and the question was not specially made upon the trial, I am inclined to think that the point is not well taken. For anything that appears, there may have been sufficient evidence before the referee as to the posting of the notices in due season and as required by law.
The want of direct proof on the subject may have been waived 'by the act or neglect of the parties, or perhaps it may have been assumed as a fact that the notices were lawfully posted, so as to bind the parties and to justify the finding of the .referee. The rule is well settled that where certain facts are assumed as existing on the trial of a case, they will be considered as admitted and will be regarded on appeal as beyond the reach of any qxiestion not raised upon the trial. (McDonald v. Christie, 42 Barb., 36, 39; Paige v. Fazackerly, 36 Barb., 392.) If the plaintiff failed to make out all the proof which was required, it was the duty of the defendant to point out the defect, so that it might be supplied. (Booth v. Bunce, 31 N. Y., 250, 251.)
There is another answer, I think, to this objection, and that is, that no objections being made to the order on its face and to its recitals, it is prima facie evidence of jurisdiction, although not conclusive and open to contradiction. (Potter v. Merchants' Bank, 28 N. Y., 641, 652; The People v. Commissioners of Seward, 27 Barb., 94, 97.)
*323It is also insisted that no notice to remove the fences was given, as required by the statute (1 R. S., 520, § 96), and therefore the commissioner could not lawfully order the road opened. This point was not made on the trial, and no ruling or decision was made by the referee in regard to it. The cause must have been tried upon the assumption that the statute had been complied with in this respect, or that it was not material, and the remarks already submitted as to the effect of assuming certain facts to exist upon a trial are applicable to this branch of the case and to the question now discussed. Had the point been distinctly raised, it would have been a fatal objection to the plaintiff’s recovery; but as the defendant failed to call the attention of the referee to it upon the trial, he cannot urge it upon this appeal.
It is also urged, that the defendant’s damages have not been ascertained by agreement, and have not been assessed in the manner prescribed by law. (1R. S., 515, § 64.) In the report of the commissioners, the assessment is to “ James and Edmund Bean, ten cents.” The proof shows that the defendant had a life estate, and Edmund Bean the remainder, and that Edmund Bean appealed from the assessment of damages, and was allowed §100. There was also some evidence that they occupied the farm jointly. If intended as a joint assessment, then it was clearly in proper form. If designed as a separate assessment for each one, it is by no means certain that it is not valid by adopting the well-settled rule, to give such a construction to the report as will give effect to it, instead of one that will render it nugatory. But, whether the assessment was joint or several, or the proceedings were erroneous and irregular in this respect, I think that the defendant’s remedy was by appeal or by a certiorari. (People v. Lewis, 26 How., 378; People v. Tallman, 36 Barb., 222; Laws of 1847, chap. 455; Thompson on Highways, 198, 205.)
There was no error on the trial; and the judgment of the referee must be affirmed, with costs.
Judgment affirmed.