Criticism is made upon the plaintiff’s complaint-Upon looking into it, we find that it contains all the essential facts-found by the referee in his report, as well as some other allegations which could be construed, perhaps, to indicate that the pleader supposed the plaintiff had some right of action by reason of the “construction and encroachments” placed upon the highway, rendering it dangerous, by the defendant. In the prayer, however, for judgment, the plaintiff asks “that the said defendant remove all the said obstructions, abutments, embankments, stone, iron, and material from the said highway, and "within its bounds, and they be declared to bean impediment and obstruction to public travel, and the defendant be compelled to remove each and all of said obstructions, and perpetually, as well as pending this action, it be enjoined from keeping *865or maintaining, using or repairing, the said abutments or embankments, abutments, or obstructions in the said highway, or any obstruction within its bounds.” During the progress of the trial, we do not find that the defendant took specific objections to the complaint on the ground that it did not allege an imperative duty on the part of the defendant to restore the road to its former condition, or so as not to unnecessarily impair its usefulness. We think the criticism made to the complaint at this stage of the action must fail. Wademan v. Railroad Co., 51 N. Y. 572.
In chapter 568 of the Laws of 1890 it is provided in section 100 that:
“All lands which shall have been used by the public as a highway for the period of twenty years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway; and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.”
That section fell under construction in Speir v. Town of Utrecht, 121 N. Y. 420, 24 N. E. 692, and in People v. Osborn (Sup.) 32 N. Y. Supp. 358.
We think the proof in the case before us is sufficient to indicate that the highway had been used by the public as a highway, and that, coupled with the proof of the survey of 1814 and the order accompanying the same, laying it out as a highway, the referee, upon all the evidence, was warranted in assuming that the site where the defendant’s embankments were placed was a part of the public highway. The evidence produced before the referee differs very much from the-evidence disclosed in the cases to which reference has already been made.
In Barse v. Railroad Co., 13 N. Y. St. Rep. 215, this court had occasion to examine the statute which authorized commissioners of highways “to bring any action against any railroad corporation that may be necessary or proper to sustain the rights of the public in and to-any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commissioners.” In that case it appeared that the defendant had “failed to restore said highways to-their former state of usefulness,” and we sustained the action. In the course of one of the opinions delivered in that case, the distinction-between an action against a private individual and one against a corporation was pointed out, and the case of Rozell v. Andrews, 103 N. Y. 150, 8 N. E. 513, was stated not to aoply to an action against a corporation. Since that decision was made, the legislature, in the highway act (section 15, c. 568, Laws 1890), has provided that commissioners of highways may bring an action in the name of the town “against any person or corporation, to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto,” etc.
In Hatch v. Railroad Co. (Sup.) 4 N. Y. Supp. 509, it was held that the duty imposed upon the corporation to restore a highway to its former state, or to such state as not unnecessarily to have impaired *866its usefulness, is a continuous one, and that the action was not barred by any statute of limitations.
In the course of the opinion delivered in Post v. Railroad Co., 123 N. Y. 587, 26 N. E. 7, it is said that, while the highway commissioner cannot dictate how the work of restoration should be accomplished, the duty imposed on a railroad company whose road is located in a highway to restore it to its former state, or to such state as not unnecessarily to impair its usefulness, is “a corporate duty, which the company is bound to perform; and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized, by chapter 255 of the act of 1855, to maintain an action to enforce the performance, or for damages sustained by the town from nonperformance.”
Prior to the decision of that case, it had been intimated in New York, C. & H. R. R. Co. v. People, 12 Hun, 195, that the remedy for failure on the part of the railroad was by indictment. That case was modified to some extent when it reached the court of appeals, as appears by the report thereof as found in 74 N. Y. 302; and in the course of the opinion delivered by Church, C. J., in considering the duty of the corporation to restore the road, he said:
“The duty thus imposed is an important one for the public, and it should be enforced, not oppressively, but reasonably, and fairly for the public benefit.”
And he added:
“It was the duty of the defendant not only to properly make these approaches, but to keep them in suitable repair. Having to this extent interfered with the highway, or, rather, having taken possession of the old highway, and substituted a new and different one, they must preserve it in a state, as far as practicable, of original usefulness;” citing Cott v. Railroad Co., 36 N. Y. 214.
And it was also said in that case that the duty was a continuous one.
In People v. NewYork, N. H. & H. R. Co., 89 N. Y. 266, in the course of the opinion, it was intimated that it was a question of fact, in a somewhat similar case, “whether the defendant unnecessarily impaired the usefulness of the highway”; and it was intimated that, “by the growth of population, the first provision made might become inadequate for the public accommodation.”
The doctrine last mentioned wras approved in Hatch v. Railroad Co., 50 Hun, 64, 4 N. Y. Supp. 509, and in the course of the opinion delivered in that case it was said:
“If, by an increase of business on highways, the facilities first provided become inadequate, the corporation must make such changes as are reasonably necessary to provide for the needs of the public.”
Numerous cases are then cited. The opinion then adds:
“Whether the facilities afforded were sufficient was a question of fact for the court, and, under the evidence, its decision ought, not to be disturbed by this court. The duty being a continuous one, the action was not barred by any statute of limitations.”
In order to maintain this action, we think it is not necessary that the commissioners should declare an encroachment, and institute *867proceedings given by the statute for the removal of an encroachment. Nor do we think Cook v. Covil, 18 Hun, 288, has any application to the case in hand. We are of the opinion that the existence of the abutments/for the period of upward of 20 years did not limit the public to the right of the space 13 feet and 2 inches between them, and that it was a question of fact, upon all the evidence before the referee, as to whether the needs of the public were such that the aperture left was inadequate to serve the same. There was some evidence given tending to show that the abutments were placed in that portion of the highway which had been used by the public prior to their erection, and we are of the opinion that the evidence warrants a finding of fact that the public had acquired rights in the use of the highway which the defendant has interfered with.
We have looked into the exceptions taken during the progress of the trial, and also to the omission of the referee to make certain additional findings, and we are of the opinion that they do not present any error which requires us to interfere with the conclusion reached by the referee.
Judgment affirmed, with costs. All concur.