The defendant justified his entry upon the land of the plaintiff upon the ground that the locus in quo was a public highway, and to establish its existence, produced from the town clerk’s office, of the town of Brookhaven, a record purporting to have been made by two commissioners of highways of that town, in 1799, of the alteration of a road or highway, extending from the town road across the premises now owned by the plaintiff to the Sound; and laying out a new road over the same premises, on a new line for a part of the distance, intersecting the old road near the Sound, and thence proceeding on the line of the old road (but increasing
The record produced fails to show upon its face the essential ground and fact of jurisdiction, viz., that the owners of the land had agreed to the alteration of the road. There is no recital of any consent on their part to the proceeding, and the old roadway, which the commissioners assume to surrender to them, is made subject to a perpetual servitude and easement, in favor of persons, having, so far as the record shows, no right or interest in the premises.
This record did not, we think, establish the existence of a legal highway. Commissioners of highways act, in laying out highways, under a special and statutory authority, and it must appear upon the face of their proceedings — or by proof aliunde, that they acquired jurisdiction in the particular case, and a record, purporting to be the record of a highway laid out by them, which fails to show, affirmatively, that jurisdiction was acquired, cannot be helped out by intendment or presumption, based upon the fact that the commissioners were public officers acting in discharge of a public duty. Presumption does not supply the lack of proof. This is especially so, when such a record is set up to justify an entry upon the land of another which, in -the absence of a public right of passage, was a clear trespass.
If a defective record of a highway is aided by extrinsic proof, as it may be, of the existence of the jurisdictional facts, or there has been a long user in accordance with the record, quite a different question would arise, but, alone and unaided, it does not tend to prove, as against the owner of the land, the existence of a highway over it. (Jenks v. Stebbins, 11 J. R., 224; Dakin v. Hudson, 6 Cow., 221; Wheeler v. Townsend, 3 Wend., 247; Case v. Thompson, 6 id., 634; Denning v. Corwin, 11 id., 648; Barber v. Winslow, 12 id., 102; Ex parte Clapper, 3 Hill, 489; People v. Cassels, 5 id., 164; Cornell v. Barnes, 7 id., 35; Whiting v. Shufelt, 1 Denio,
The nonsuit cannot be justified, unless the existence of the highway was conclusively established. It was not proved by the record, and the proof of user, and the other facts relied upon, to show that the locus in quo was a public highway, should have been submitted to the jury under proper instructions from the court.
The action of the commissioners, in 1867, in making a survey and description of the road, laid out by the record of 1799, was void, if that record was itself void, and, if an appeal would lie in such a case, the omission to take it does not preclude the plaintiff from contesting in this action the existence of the alleged highway. (People v. Judges of Suffolk County, 24 Wend., 249; People v. Judges of Cortland County, id., 491.)
The evidence in the case is confused, and it is difficult to understand it, but we think that, upon the ground stated, the judgment should be reversed and a new trial granted.
All concur.
Judgment reversed.