Parker was sued before a justice for the penalty of fifty cents per day, given by the act of March 11, 1861 (Sess. L. 1861, p. 153), for an alleged encroachment by fence upon a highway. The defendants in error obtained judgment, and Parker appealed. On the trial in the Circuit Court, when The People again obtained judgment, numerous exceptions were taken which are now before us for consideration and judgment.
We shall only notice one or two of these exceptions, most if not all the others being quite unimportant, and several of them being ambiguous and indefinite.
As the penalty sued for is only given for encroachments upon such highways as are “laid out,” the evidence of user admitted on the trial to prove the existence of the way was immaterial and not pertinent to the issue.
The survey-bill and order made by the commissioners, and which the court allowed to be given in evidence, did not show the laying out of a highway.
The evidence was clear and uncontradicted that the' supposed highway had never been laid out, and the survey and order referred to appear to have been made under the statute, which requires the commissioners to ascertain, describe, and enter of record such roads as become highways by public use for the requisite length of time. — § 991, Comp. L., 3d clause.
This statute assumes the existence of ways by prescription, which ought to be described in the town records, and does not contemplate the making of new ways. The survey and order in question were therefore inadmissible as evidence of the laying out of a highway or the existence of a highway laid out by commissioners.
The circuit judge, however, submitted these proceedings *96to the jury, not only as competent but as conclusive evidence of a highway made by commissioners. This was clearly wrong. The judgment must be reversed.
Campbell, Cu. J. and Cooley, J. concurred. CimsTiANOY, J. did not sit in this case.