By the Court,
Savage, Ch. J.The plaintiff in error contends that the judgment should be reversed, because, 1st. The justice was ousted of jurisdiction by the plea of title; 2d. That the case is not within the second section of the act under which the suit was brought; and 3d. If'within the act, that the declaration does not shew any penalty incurred.
*297So much of the second section as it is material to state, is in substance as follows: That if the commissioners find any of the roads lessened, obstructed, or blocked up, they may open the same to such width as is mentioned in the record of such road; that if such road happen to run on the line between two persons, and a dispute arise as to which of them has encroached, the commissioners shall, after being sworn, hear their allegations, and give judgment thereon, and áirect the person encroaching to remove his fence; and the commissioners, or a majority of them, after making such decision, and committing the same to writing, &c. shall give information to the person ’ encroaching, and if he does not cause such obstruction to be removed within 20 days after such notice, and being warned by the owner of the district, he shall forfeit $5, and the like sum for every 8 days such obstruction shall remain, to be recovered with costs by the overseer. The 5th .section provides that whenever any person shall conceive himself agrieved by the commissioners in any determination made by them, either in laying out or altering any such road, or regulating any such public landing or watering place, it shall be lawful for such person to appeal to three of the judges of the common pleas, who shall convene and decide such appeal, and their decision shall be conclusive, &c.
The objection is, that the case now before the court is not within the act, because the decision attempted to be enforced is not the decision of the commissioners, but of the judges. The facts are, that on the 11th August, 1826, the commissioners surveyed the road and determined that the fences of the plaintiffin error were an obstruction; they stuck stakes within his lot, where the fences should be removed ; an appeal was made to the judges, who convened, and on the 27th March, 1827, modified the determination, by altering the stakes placed by the commissioners, but deciding as the commissioners did, that the fence was an obstruction, not in terms, but by the manner of altering the decision of the commissioners. On the 21st J uly, 1828, the commissioners recognized the decision of the judges as the final settlement as to where the fence should be, and required the plaintiff in error to move his fence accordingly, within 20 days from the 1st August then next. On the 12th *298May, 1829, the defendant in error, who was overseer of highways, warned the plaintiff in error to remove his fences according to the establishment of the judges.
It may well be doubted whether this was a proper case for an appeal to the judges. In terms, the appeal is allowed from any determination of the commissioners in laying out or altering roads, or regulating any public landing or watering place not from a decision as to an encroachment; but if it be conceded that the appeal was well brought, when the decision was made, it was virtually the decision of the commissioners of highways; for the judges • act not in their judicial capacity, but as appellate commissioners. The commissioners considered the decision of the judges as their own, and to be enforced by them, and hence gave notice accordingly. Case v. Thompson, 6 Wendell, 634.
It is objected that the warning of the overseer was a nullity, as it required a compliance with the order of the commissioners, which, as to time, was impossible. As I understand the statute, no penalty was incurred until 20 days after the notice from the commissioners, and the warning by the overseer. The notice directed the occupant to remove his fence in 20 days after the 1st of August, but as there was no warning by the overseer till May following, the previous notice was not operative, so as to subject the occupant to the penalty, but as the party did not remove his fences within 20 days after the 12th May, 1829, he thereby forfeited five dollars : and for the next eight days he forfeited five dollars more ; and both were incurred before suit brought, which was on the 12th June. The declaration seems to have been framed to meet my construction of the statute, and seems to me to be right as it is, without striking out any part of it as surplusage ; at least, it is wel^ enough in a justice’s court, where pleadings are regarded with liberality, provided they apprise the opposite party of the cause of action or defence with reasonable precision.
The main point, however, remains to be considered, to wit, whether the plea of title ousted the justice of jurisdiction ? This question, , it is contended, has been decided by this court, in The People v. Onondaga C. P. 2 Wendell, 263. Admitting, as ' observed by the learned judge who delivered the opinion in that *299case, that there is a difference in the phraseology between the act of 1813 and that of 1824, and assuming as true, the proposition that when a defendant puts in a plea of title “ in any action wherein the title to land shall in any wise come in question, the justice is deprived of jurisdiction, the language of the act still implies that there are actions in which the title to land cannot come in question, and therefore, in all cases where such plea is interposed, the justice must decide whether the plea is appropriate to the action; if he errs, the injured party has his remedy. This view of the question does not appear to have been taken in the decision of the case referred to. Did then, or could by possibility, the title to land come in question in this case ? The declaration states express!y that the lands enclosed in the defendant’s fence were the lands of the defendant. The plaintiff did not claim that the public owned the road, but that the road had been encroached upon; and suppose the question of encroachment to be open, that might be determined without an investigation of title; indeed the title is immaterial, for who was the owner of the soil was a matter of no concern to the overseer, so long as there had been an encroachment; the question was, where was the boundary of the road 1 not who owned the land. A highway is an easement, a right of passage over the lands of individuals. If one man may obstruct the road because he owns the land, upon the same principle he may shut it up; and if every one has this right, the easement may be destroyed, and a complete non-intercourse established; but I apprehend, under this statute, the question of encroachment was not open; the only question was whether the defendant had obeyed the notice of the commissioners and the warning of the overseer. The decision of the commissioners determined the fact of encroachment. The defendant had appealed to the judges to determine what 1 there was no question before them but the fact of encroachment. They decided it against the defendant. The question then, whether there had been an encroachment or not, was not before the court, but simply whether the defendant had removed his fences. What had the title to do with that question 1
*300It must be remembered that the counties on Long-Island {lave a roa¿ act 0f their own, and are not governed by the act to regulate highways applicable to the rest of the state. By the general act, a mode is pointed out by which the fact can be determined by a jury, before a justice of the peace, whether there has been an encroachment or not, 2 R. L. 277, 8, and this statute shews conclusively that the legislature did not suppose that title could come in question on an inquiry into an encroachment, or they would have directed it tried before a different tribunal. By the act relating to Long-Island, the decision of the judges upon the subject of the appeal is conclusive ; it cannot therefore be overhauled in any tribunal, unless before this court, upon certiorari directed to the judges who acted upon the appeal. And in this court I apprehend we should only inquire whether the judges had acted within their jurisdiction, and whether their proceedings were regular upon the record. Under the general road act there is an appeal also to three judges, but the correctness of their decision cannot be questioned in any manner otherwise than upon certiorari. 2 Caines, 179. Considering, therefore, the fact of encroachment to have been determined by the tribunal to whom the decision of it belonged, and the only question to be whether the defendant had removed his fences within the 20 days, it will be perceived that nothing could be more foreign from the point than the defendant’s title to the land within his fence. As well might a defendant, prosecuted for selling liquor without license in his store or house, plead title to the building in which he had committed the offence.
My opinion therefore is, that the justice decided correctly in rejecting the plea of title; that the declaration was sufficient and appropriate; and that the case itself was within the spirit, if not the letter of the statute. The proceedings of the justice should therefore be affirmed.