Proceedings to recover penalty for obstructing highways. for ob § 102. Whoever shall obstruct any highway, or shall fill up or Penalty place any obstruction in any ditch constructed for draining the structing. water from any highway, shall forfeit for every such offence the sum of five dollars. [27 B., 211; 23 W., 451; 9 J. R., 349, 365; 34 N. Y., 452; 37 B., 53.] of en ments; notice § 103. In every case where a highway shall have been laid out Removal or ascertained, described and entered of record in the town clerk's croachoffice, and all roads not recorded, which have been or shall have order and been used as public highways for twenty years or more, and the therefor. same have been or shall be obstructed in any manner or encroached upon by fences or otherwise, the commissioner or commissioners of highways of the town shall, if in his or their opinion it be deemed necessary, order such obstructions or encroachments to be removed, so that such highway may be of breadth originally intended. The commissioner or commissioners making the order shall cause the same to be reduced to writing and signed, and shall also give notice in writing to the occupant or owner of the land to remove such obstructions or encroachments within sixty days. Every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroachment, and the place or places where the same shall be. [27 B., 211; 6 W., 634; 2 H., 473; 14 W., 255; 3 W., 371; 2 Cow., 424; 9 J. R., 359; 7 W., 300; 31 N. Y., 59; 37 B., 303.] commis remove; $104. If such removal shall not be made within the time above when mentioned, the said commissioner or commissioners may summar- sioners to ily remove or cause to be removed, such obstructions or en- penalty. croachments, and the owner or occupant of the premises to whom the notice shall be given, shall pay to such commissioner or commissioners all reasonable charges therefor, and shall forfeit the sum of fifty cents for each day that such obstruction or encroachments shall remain unremoved after the expiration of the time mentioned in said notice, which shall be collected by suit in justice's court, and shall be applied to the improvement of the roads and bridges of said town. [Laws of 1840, ch. 300.] ings on $105. If the occupant to whom notice is given, shall within five Proceeddays deny such encroachment, the commissioners, or some one of denial of them, shall apply to any justice of the peace of the county, for a me precept directed to any constable of the town, to summon twelve encroach Jury, etc, to be freeholders thereof, to meet at a certain day and place, to be specified in such precept, and not less than four days after the issuing thereof, to inquire into the premises. The constable to whom such precept shall be directed shall give at least three days' notice to the commissioners of highways of the town, and to the occupant of the land, of the time and place at which such freeholders are to meet. [Laws of 1840, ch. 300; 3 W., 468; 13 J. R., 460.] § 106. On the day specified in the precept, the jury so summoned, sworn, etc. shall be sworn by such justice, well and truly to inquire whether any such encroachment has been made, and by whom. Such witnesses as may be produced by either party, shall also be sworn by such justice; and the jury shall hear the proofs and allegations which may be produced and submitted. Verdict, how en forced. Id. [3 W., 471.] § 107. If the jury find that any encroachment has been made, they shall make and subscribe a certificate in writing, stating the particulars of such encroachment, and by whom made; which shall be filed in the office of the town clerk. The occupant of the land, whether such encroachment shall have been made by him, or by any former occupant, shall remove his fences within sixty days after the filing of such certificate, under the penalty provided in the one hundred and fourth section of this title. He shall also pay the costs of such inquiry; and if the same shall not be paid within ten days, the justice shall issue a warrant for the collection thereof, in the manner provided in the forty-third section of this title. [36 B., 493; 26 B., 592; 19 B., 537; 12 B., 510; 22 W., 135; 7 W., 300.1 108. If the jury find that no encroachment has been made, they shall so certify, and shall also ascertain and certify the damages which the then occupant shall have sustained by such proceeding; which, together with the costs thereof, shall be paid by the commissioners, and shall be a charge in their favor against the town by which they shall have been elected. [The preceding sections 102-108 are 1 R. S., 521, §§ 102-108 (1 Edm., 481) and L. 1840, ch. 300, as amended, as to g 103 and 104, by L. 1878, ch. 245. See the following act of 1862.] 432 CHAP. 243. AN ACT making further provisions relative to encroachments upon highways. PASSED April 15, 1862; three-fifths being present. The People of the State of New-York, represented in Senate and Assembly, do enact as follows: ings upos jury. SECTION 1. Upon the hearing before a jury, as provided in sec- Proceed tion one hundred and six of article fifth, title first, chapter six- before teenth and part first of the Revised Statutes, the justice who has issued the precept to such a party shall preside at the trial, in the same manner as upon the trial of an issue joined in a civil action commenced before him, six of the jurors summoned shall be drawn and empanelled in the same manner as upon trial by jury in civil action before him, and he shall have the power and it shall be his duty to decide as to the competency of jurors, the competency and admissibility of evidence, and all other questions which may arise before him, in the same manner and with the like effect as upon a jury trial in civil actions before him; and such justice shall adjust and determine the costs of such inquiry, and in case the jury shall find an encroachment, he shall render and docket a judgment Judgment. to that effect, and for such costs against the person or persons who shall have denied such encroachment; in case the jury find no encroachment, he shall render and docket a judgment to that effect against the commissioner or commissioners prosecuting the proceedings, and also for such costs, together with the damages, if any, which may have been fixed by the jury, and payment thereof shall be enforced by such justice, as in other cases of judgments rendered by him. § 2. The person or party against whom such judgment shall be Appeal rendered, may, within sixty days after filing the certificate of the jury, appeal from the finding and judgment to the county court of the same county; such appeal shall be made by the service, within twenty days after the docketing of said judgment, of notice of appeal upon the justice and upon the successful party or parties, or Id.; proceedings thereon. one of them, stating the grounds of such appeal. It shall be the duty of such justice, in his return to such appeal, to embrace copies of all the papers made and served in the proceeding prior to issuing the precept for such jury, and all the evidence and proceedings before him, together with the finding of the jury and judgment entered thereon. All the provisions of title eleven, chapters third and fifth of the Code of Procedure are hereby extended to such appeals, so far as the same are applicable thereto.(*) § 3. In case the decision of the jury finding an encroachment shall be affirmed by the appellate court, such court, in addition to the costs now allowed by law, may in its discretion order judgment against the appellant for the penalties provided by section one hundred and four of article one, title one, chapter sixteen, part first of the Revised Statutes aforesaid, for such period as shall intervene between the time fixed for the removal of fences, as provided by section one hundred and seven of the said article, title and chapter, and the decision of such appeal; and in case of the continued neglect or refusal of the occupant, after judgment, to make such rePenalties moval, the court rendering judgment may, by order from time to time, enforce the additional penalties incurred, or may provide for the removal of such fences at the expense of the occupant, payment of such expense to be enforced by order. Such applications to be made according to the usual practice of the court.(1) after judg ment. Applica tion of act. § 4. This act shall apply to all proceedings now pending in relation to encroachments upon highways, where a hearing has not already taken place, and all acts or parts of acts inconsistent with this act are hereby repealed, so far as proceedings had or continued under this act are concerned. [3 Edm., 546.] Swinging gates. Proceedings to remove gates on highways. § 113. No swinging or other gates shall be allowed on any public highway, laid out by virtue of this title, or which has heretofore been laid out, other than such public highways as run through lands 434 (a) The appeal to the county court will not be regulated by §§ 3044-3073, ante, pages 8093; but the appeal to the supreme court will be regulated by $$ 1340-1345 and 1357, of the Code of Civil Procedure. See § 3, subd. 13 of L. 1880, ch. 245, post, page 514. (b) Sections 104 and 107 of the R. S., referred to are on pages 431 and 432, ante. liable to be overflowed by the waters of the adjacent rivers or streams, in such manner as to remove the fences thereon. erected served. 114. Such gates shall be erected and kept in good repair, by the How overseers of highways of the town, at the proper costs and charges and preof the occupant of the land, for whose benefit the same shall be erected. § 115. If more than one gate shall be erected, and the intermediate Expense. land between the gates, at the extremities of such lands, shall be in the occupation of more than one person benefited by such gates, the whole charge of erecting and keeping the same in repair, shall be borne by all the occupants benefited thereby, in proportion to the extent of land each occupies adjoining the highway, between the gates at the extremities aforesaid. ings to collect. 116. The overseer of every road district in which such gates Proceedshall be, shall, on or before the first day of November in every year, make out and file with the town clerk, a statement of the charges incurred in the erection or repairing of such gates, with the name of the person bound to defray the same; which account shall be verified by the oath of such overseer. If more than one person is liable to defray such charges, the statement shall also contain an apportionment thereof between such persons, stating the amount to be paid by each. § 117. The overseer shall, within ten days after filing the state- Id. ment, demand of every person bound to pay such charges, or to contribute thereto, the sum due from him, according to such statement; and if any person shall refuse or neglect to pay such moneys within six days after demand, it shall be the duty of the overseer to make complaint to a justice of the peace of the town, and the like proceedings shall be had for the recovery of such moneys, as in the recovery of fines, for refusing or neglecting to work on the highways. [Preceding sections 113-117 are 1 R. S., 523, §§ 113-117 (1 Edm., 483). J Proceedings to assess highway damages. § 5. Whenever any damages are now allowed to be assessed by Damages upon laylaw, when any road or highway shall be laid out, altered or discon- ing out tinued, in whole or in part, such damages shall be assessed by not sessed. roads; how as |