Opinion of the Court, per BRADLEY, J.

as evidence only when made to a physician for the purposes of treatment by him. (Barber v. Merriam, 11 Allen, 322; Fay v. Harlan, 128 Mass. 244; Roche v. Brooklyn City, etc., R. R. Co., 105 N. Y. 294.)

In the present case the declarations in question of the plaintiff were not instinctive nor were they made to the physician with a view to medical treatment. They consisted not of exclamation of present pain or suffering, but were the plaintiff's statements so far as called for by the doctor of the effect upon him of the injury and the consequences which had followed in such respects from the time it occurred, a period of nearly fifteen months. This was hearsay, and is very different from that of a medical witness as to the expressions by a patient or person suffering from injury or disease, indicating pain or distress or expressive of the present state of his feelings in that respect. We think the reception of the evidence was error. And although the plaintiff testified to the truth of the statements made to the doctor his evidence did not cure the error. The character of his injury was an important fact as bearing upon the question of damages. And although his evidence may have constituted the basis in part at least of a hypothetical question for the opinion of the doctor it cannot be said that the evidence given by the latter of the plaintiff's declarations were not prejudicial to the defendants. The plaintiff's interest as a party presented the question of his credibility for the jury, and his evidence could not properly be corroborated by proving that the facts to which he testified corresponded with the declarations made by him to the doctor. This for the support to the plaintiff's evidence was not admissible. (Robb v. Hackley, 23 Wend. 50; Reed v. N. Y. C. R. R. Co., 45 N. Y. 574.)

The other exceptions taken require no consideration as they may not necessarily arise upon another trial.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.
Judgment reversed.

Statement of case.

DAVID H. JAMES, Appellant, v. ISAAC SAMMIs et al.,
Respondents.

In an action for alleged trespass in entering upon plaintiff's land in the
town of Huntington, and taking down his fence, the defense was that
the locus in quo was part of a public highway which bounded plaintiff's
premises on the south, upon which the fence encroached and that it
was removed by order of the highway commissioners. It appeared
that in 1869, the fence on the south side of the highway which had been
located there for over forty years was moved south, which constituted
the alleged encroachment claimed by the defendants. With a view to
proceedings for removal of the fence under the provisions of the Revised
Statutes (1 R. S. 501-526, §§ 100-103, as amended by chap. 245, Laws
of 1873), which declares that all roads not recorded which have been
used as public highways for twenty years, shall be considered such,
and authorizes proceedings for removal of encroachments, the com-
missioners of highways of the town in 1885, made an order purporting
to define and describe the highway, which with a map thereof, was
made of record in the town. In 1886, the commissioners made an order
describing the alleged encroachment, and directing the removal of the
fence. This order with a notice annexed was served upon plaintiff, and
after sixty days, under direction of the commissioners, the fence was
removed by defendants. It was claimed by plaintiffs that said statutory
provisions were not effectual to support the proceedings, because prior
to 1864, they had no application to the town, it being governed by
special acts (Chap. 14, Laws of 1789; chap. 56, Laws of 1830). These
acts were repealed by the act of 1864 (Chap 514, Laws of 1864), and by
the act of 1965 (Chap. 6, Laws of 1865) the general statutes were
extended to the counties named in said special acts. Held, that as at
the time of the encroachment and of said order, the road had been used
as a public highway for twenty years, it was within and subject to said
provisions of the Revised Statutes, that the amendment in 1878, in
reference to the removal of encroachments, merely gave an additional
remedy, which was available although it did not exist at the time of
encroachment.

Also held, that prior to said statutes of 1864 and 1865, the provisions of the Revised Statutes, as they then were, were effectual in the counties named in the special acts, as they were not in conflict but were consistent with them, and for purposes for which no provision was made in the local statutes.

Defendants introduced in evidence a paper found among the old records of the town, purporting to be an order made in 1746, by the town commissioners "in pursuance of an order of General Assembly," which described the highway in question. Held, that the order was properly

Statement of case.

received in evidence and that it was within the statutory power of

the commissioners to make it. (Chap. 575, Col. Laws 1732; chap. 686, Col. Laws 1739.)

It was claimed that the notice served by the commissioners upon plaintiff was defective in that it did not specify the breadth of the road originally intended as required by the statute (1 R. S. 526, § 103, as amended by chap. 245, Laws of 1878). Held, untenable; that the order contained it, and as this was annexed to and served with the notice, they practically constituted a single document and this was sufficient; that it was not essential that the specification should appear in both notice and order.

(Argued February 4, 1892; decided March 22, 1892.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 12, 1890, which affirmed a judgment in favor of defendants, entered upon the report of a referee.

The nature of the action and the facts, so far as material, are stated in the opinion.

Charles R. Street for appellant. Where a person using a laid out highway occasionally passes over the land adjoining it, that is not such a use as would make the adjoining land a highway. (Rozell v. Andrews, 103 N. Y. 150.) There is no evidence in the case sufficient to establish that the premises in question had become a highway by user. (Laws of 1789, chap. 14; Laws of 1830, chap. 56; People v. Quigg, 59 N. Y. 83.) The act of 1864 repealing the Long Island Counties Act and extending the provisions of the general statutes relating to highways in Suffolk county, had no retroactive effect. (Williams v. Oswego, 25 Hun, 38; Carpenter v. Skinner, 24 id. 466; McCahill v. Hamilton, 20 id. 391; Dash v. Van Kleeck, 7 Johns. 477; Sayre v. Wisner, 8 Wend. 661; Wood v. Oakley, 11 Paige, 400; Johnson v. Burrill, 2 Hill, 238; Sanford v. Bennett, 24 N. Y. 20; Amnsbry v. Hinds, 48 id. 60.) Assuming, for the sake of argument, that the defendants had in some manner shown that the premises in question had become a highway by user at the time of the erection of the fence in 1869, even then the

Statement of case.

encroachment proceedings, on which the defendants rely and upon which and their regularity the judgment is based, were unauthorized. (Talmadge v. Huntting, 29 N. Y. 447; People v. Judges, etc., 24 Wend. 491; Davenport v. Lambert, 44 id, 598; Cook v. Cavil, 18 Hun, 289; Benton v. Wickwire, 54 N. Y. 226.) Assuming again that the premises in question were a part of the highway, the order of encroachment and notice to remove the same, which were served on the plaintiff, were so defective as to afford no protection to the defendants in the destruction of the plaintiff's fence. (Cook v. Cavil, 18 Hun, 288; Mott v. Rush, 2 Hill, 472; Spicer v. Slade, 9 Johns. 359; Rozell v. Andrews, 103 N. Y. 150.)

Henry C. Platt for respondents. When the General Term has affirmed findings of fact and there is, in any view, evidence to sustain them, the Court of Appeals will not review them. (Berdell v. Allen, 116 N. Y. 661; Rutherford v. Schattman, 119 id. 604; Healy v. Clark, 120 id. 642.) There was a user of this highway, including the portion thereof in controversy, by the public, from the time whereof the memory of man runneth not to the contrary, up to 1869, when the obstruction or encroachment was made by the building of a new fence out into the said highway. (Sage v. Barnes, 9 Johns. 365.) A highway legally laid out, its continuance as such is to be presumed, unless the proof shows to the contrary. (Beckwith v. Whelan, 65 N. Y. 322; Laws of 1878, chap. 245, § 1.) The exception taken by the plaintiff to the exclusion by the referee of an alleged conversation with one of the three commissioners of highways is of no avail. (People v. Hynds, 30 N. Y. 470; Stewart v. Wallis, 30 Barb. 344; 1 R. S. 525, § 125; Fitch v. Comrs., 22 Wend. 132.) Accretions at the end of a highway that runs to the shore and in the line thereof become and remain a part of the highway, and the highway still goes on the same line to the shore, wherever the shore may be. (Wetmore v. A. W. L. Co., 37 Barb. 70-97; People v. Lambier, 5 Den. 9; Angel on Tide Waters, 64, 218.) The provisions of the Long Island Counties Act of 1789-1830 as to highways, SICKELS-VOL. LXXXVII.

31

Statement of case.

which existed prior to 1865, have no bearing upon this case. (Laws of 1865, chap. 6; Key v. Goodwin, 4 M. & P. 341; Sedg. on Stat. Const. 109, 110; Tivey v. People, 8 Mich. 128; Dwarris on Stat. 676.) Highways by user have always been recognized as legal public highways under the common law and statutes of this state. (Driggs v. Philips, 103 N. Y. 77; Hickok v. Village of Plattsburg, 41 Barb. 130; Bridges v. Wyckoff, 67 N. Y. 130.) The commissioners had the right to remove the fence by proceedings under chapter 245, Laws of 1878, sections 1, 103. (People v. Hunting, 39 Hun, 455; Laws of 1878, chap. 245, §§ 1, 103, 104; Baylis v. Roe, 5 N. Y. Supp. 279; Wetmore v. Tracy, 14 Wend. 250; Cooper v. Bean, 5 Lans. 318; Chapman v. Gates, 54 N. Y. 132; Cook on Highways, 309, 310; Cook v. Harris, 61 N. Y. 448-455; Driggs v. Phillips, 103 N. Y. 77; Bridges v. Wyckoff, 67 id. 130; L. T. Co. v. Rogers, 2 Barr, 114; Rung v. Shoneberger, 2 Watts, 23; Dimmett v. Eskridge, 6 Munf. 308; Gunter v. Geary, 1 Cal. 462; Davis v. Mayor, etc., 14 N. Y. 524.) Every actual encroachment upon a highway by the erection of a fence or building thereon, or any other permanent or habitual obstruction thereof, may fairly be said to be a nuisance, even though it does not operate as an actual obstruction of public travel. (Wood on Nuisances [Ed. 1883], 260; Harlow v. Hutchinson, 6 Cow. 189; Gregory v. Commonwealth, 2 Dana, 417; Stetson v. Facon, 19 Pick. 147; Barker v. Com., 19 Penn. St. 412; Rex v. Wright, 3 B. & Ad. 681; Add. on Torts, 225; L. T. Co. v. Rogers, 2 Penn. St. 114; Wetmore v. Tracy, 14 Wend. 250; Dickey v. M. T. Co., 46 Me. 483; Harrower v. Ret son, 37 Barb. 301; Wright v. Saunders, 65 id. 214; Radcliff v. Mayor, 4 N. Y. 195; Gozzler v. Georgetown, 6 Wheat. 593; Callender v. Marsh, 1 Pick. 418; Snyder v. Rockport, 6 Ind. 237; McFadden v. Kingsbury, 11 Wend. 667; Andersen v. Van Tassel, 53 N. Y. 631; Cook v. Harris, 61 id. 448; Driggs v. Phillips, 103 id. 77; Perley v. Hilton, 55 N. II. 444; Kerr v. Hammer, 15 N. Y. Supp. 605; Morton v. Moore, 15 Gray, 573.)