I entertain no doubt but that there are cases in which an injunction will issue to prevent a purpresture in a public highway. It is so laid down in 2 Story’s Equity Jurisprudence (section 922), and in sundry cases cited by him, and in Angel on Highways (sections 280 to 283). The difficult question is, who can maintain the action ?
The statutes relating to laying out and repairing highways clothes the commissioners of highways with all the powers that are necessary to enable them to perform all the duties that are imposed upon them, and should a case arise in which their powers are not adequate to a proper and efficient protection of the public rights, it is possible that the attorney-general might pi-oceed in equity. In cities where the fee of the land over which a highway is laid *263out, the corporation will obtain relief in equity when it would not be given to a party having no interest in the land, except naked easement or right of passage. (Angel on Highways, § 282.)
The court below was correct in holding that plaintiff could not maintain the action, and the judgment must be affirmed with costs.
Present — Mullin, P. J., and Talcott, J.; Smith, J., not sitting.Judgment affirmed with costs.