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The road in question was undoubtedly laid out according to the requirements of the statute in all respects, up to the point of its intersection with the old road. The error complained of, and which, it is alleged, violates the entire order, is in that part of the order which affects this old road, from the point of the intersection aforesaid, to the center of the road known as the churchland lane, which was one of the termini of the road mentioned in the application to the commissioners, and in the subsequent proceedings. This old road, from the point where it was intersected by the survey to the other road known as the churchland lane, was clearly a public highway. The justice who tried the cause, finds as matter of fact, that it had been used as a public highway for twenty years. The statute provides that "all roads not recorded which have been, or shall have been, used as public highways for twenty years or more, shall be deemed public highways, but may be altered in conformity with the provisions of this title." (1 R.S. 521, § 100.) This portion of the highway embraced in the application would not have been created a public highway had the order and proceedings been entirely regular. It was such by law before, and all the power the commissioners had over it, was to alter it according to the provisions of the statute, or discontinue it. It is still an existing public highway, even if the proceedings
of the commissioners are in all respects void. The public have lost nothing, whether the commissioners have exceeded their jurisdiction or not. The right of the highway commissioners to alter this old road is prescribed by § 101 of the statute, which is to open it to the width of two rods at least. By sub. 3 of § 1 of the same title, (1 R.S. 502,) the commissioners of highways have power to "cause such of the roads used as highways as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk's office." It will be seen, therefore, that in respect to this old road, the commissioners had power to have a descriptive survey made of it, and have such description entered of record, and also to order it opened to the width of two rods at least. This is precisely what they have done. They caused it to be surveyed, and described, as a road two rods in width, and ordered it opened according to such survey and description. It is clear, therefore, that the highway commissioners have done nothing in the premises which they were not strictly authorized to do by statute, unless it be the interference with the orchard, which will be considered in another place. Certainly there is no jurisdictional defect in any thing else they have actually done, whatever they may have intended by their proceedings. It is said in the opinion in the Supreme Court, that the record contains no allegation, and affords no evidence that the commissioners ever judged this old road to have been used for twenty years. Whether they so judged is in no respect essential to its being a public highway. The statute makes it a highway if in fact it has been used for twenty years, independent of any judgment of the highway commissioners. But it seems to me there is evidence on the face of the order, that the commissioners did regard this old road as a public highway, and treat it as such. All the rest of the route is laid out in strict accordance with the statute on the subject of laying out a new road. The line is described
by courses and distances, and is declared in the order, to be the center line, and the width of the road to be three rods. This line is brought "up to the portion of the old road." The description in the order then continues: "then on said old road," giving courses and distances, and the names of the owners of the land, "to the center of the road known as the churchland lane," which was the terminus of the route at that end mentioned in the application. This portion of the road is declared in the order to be two rods wide, and it is not declared whether the line described is the center line or not. It appears to me very clear that the reason for this change was that they regarded this old road as a highway, and intended to have it opened to the width of two rods. Their proceedings are in harmony with this view and no other. Certainly it is not to be intended that they were ignorant of the requirements of the statute in laying out new roads, nor that they intended to violate them. The intendment is in their favor; and if they have done what the statute authorized them to do, the presumption will be, that they intended to do it in accordance with the statute. But even if it should appear that they intended something contrary to the statute, and yet that the act done was in accordance with it, the unlawful or the mistaken intention would not divest the proceeding of jurisdiction. Jurisdiction does not depend upon the intention of the officer, or tribunal, undertaking to act, in a given case. The question is, does the law authorize the act?
Full and complete effect may be given to the order laying out the road, and also to the order to the defendant's intestate as overseer of highways, to open the same with the above exception referred to, in perfect accordance with the power conferred by statute upon the commissioners, and without any violation of such powers. Regarding the first part of the order laying out the road up to the point of intersection with the old road, as one strictly of that character, and the residue which follows the old road as a description of the old
road to be recorded, and for the purpose of having it opened two rods in width, by a subsequent order to that effect to the overseer of highways, the whole is consistent and harmonious and entirely within the powers of the commissioners. This interpretation unquestionably ought to be given to it for the protection of public officers, acting in good faith, if it can be done without any violence to the real nature and character of the proceeding. I can have no doubt, looking at the entire transaction, that this was just what was intended. Upon this view of the case the public will have a public highway across from one public thoroughfare to another, a part of the way, a new one three rods in width, and a part of the way an old one opened to two rods in width, both in accordance with the provisions of the statute. It is not very material that in the order the commissioners have designated it as laying out a public highway the entire distance.
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The road in question was undoubtedly laid out according to the requirements of the statute in all respects, up to the point of its intersection with the old road. The error complained of, and which, it is alleged, violates the entire order, is in that part of the order which affects this old road, from the point of the intersection aforesaid, to the center of the road known as the churchland lane, which was one of the termini of the road mentioned in the application to the commissioners, and in the subsequent proceedings. This old road, from the point where it was intersected by the survey to the other road known as the churchland lane, was clearly a public highway. The justice who tried the cause, finds as matter of fact, that it had been used as a public highway for twenty years. The statute provides that "all roads not recorded which have been, or shall have been, used as public highways for twenty years or more, shall be deemed public highways, but may be altered in conformity with the provisions of this title." (1 R.S. 521, § 100.) This portion of the highway embraced in the application would not have been created a public highway had the order and proceedings been entirely regular. It was such by law before, and all the power the commissioners had over it, was to alter it according to the provisions of the statute, or discontinue it. It is still an existing public highway, even if the proceedings
of the commissioners are in all respects void. The public have lost nothing, whether the commissioners have exceeded their jurisdiction or not. The right of the highway commissioners to alter this old road is prescribed by § 101 of the statute, which is to open it to the width of two rods at least. By sub. 3 of § 1 of the same title, (1 R.S. 502,) the commissioners of highways have power to "cause such of the roads used as highways as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk's office." It will be seen, therefore, that in respect to this old road, the commissioners had power to have a descriptive survey made of it, and have such description entered of record, and also to order it opened to the width of two rods at least. This is precisely what they have done. They caused it to be surveyed, and described, as a road two rods in width, and ordered it opened according to such survey and description. It is clear, therefore, that the highway commissioners have done nothing in the premises which they were not strictly authorized to do by statute, unless it be the interference with the orchard, which will be considered in another place. Certainly there is no jurisdictional defect in any thing else they have actually done, whatever they may have intended by their proceedings. It is said in the opinion in the Supreme Court, that the record contains no allegation, and affords no evidence that the commissioners ever judged this old road to have been used for twenty years. Whether they so judged is in no respect essential to its being a public highway. The statute makes it a highway if in fact it has been used for twenty years, independent of any judgment of the highway commissioners. But it seems to me there is evidence on the face of the order, that the commissioners did regard this old road as a public highway, and treat it as such. All the rest of the route is laid out in strict accordance with the statute on the subject of laying out a new road. The line is described
by courses and distances, and is declared in the order, to be the center line, and the width of the road to be three rods. This line is brought "up to the portion of the old road." The description in the order then continues: "then on said old road," giving courses and distances, and the names of the owners of the land, "to the center of the road known as the churchland lane," which was the terminus of the route at that end mentioned in the application. This portion of the road is declared in the order to be two rods wide, and it is not declared whether the line described is the center line or not. It appears to me very clear that the reason for this change was that they regarded this old road as a highway, and intended to have it opened to the width of two rods. Their proceedings are in harmony with this view and no other. Certainly it is not to be intended that they were ignorant of the requirements of the statute in laying out new roads, nor that they intended to violate them. The intendment is in their favor; and if they have done what the statute authorized them to do, the presumption will be, that they intended to do it in accordance with the statute. But even if it should appear that they intended something contrary to the statute, and yet that the act done was in accordance with it, the unlawful or the mistaken intention would not divest the proceeding of jurisdiction. Jurisdiction does not depend upon the intention of the officer, or tribunal, undertaking to act, in a given case. The question is, does the law authorize the act?
Full and complete effect may be given to the order laying out the road, and also to the order to the defendant's intestate as overseer of highways, to open the same with the above exception referred to, in perfect accordance with the power conferred by statute upon the commissioners, and without any violation of such powers. Regarding the first part of the order laying out the road up to the point of intersection with the old road, as one strictly of that character, and the residue which follows the old road as a description of the old
road to be recorded, and for the purpose of having it opened two rods in width, by a subsequent order to that effect to the overseer of highways, the whole is consistent and harmonious and entirely within the powers of the commissioners. This interpretation unquestionably ought to be given to it for the protection of public officers, acting in good faith, if it can be done without any violence to the real nature and character of the proceeding. I can have no doubt, looking at the entire transaction, that this was just what was intended. Upon this view of the case the public will have a public highway across from one public thoroughfare to another, a part of the way, a new one three rods in width, and a part of the way an old one opened to two rods in width, both in accordance with the provisions of the statute. It is not very material that in the order the commissioners have designated it as laying out a public highway the entire distance. We are to judge according to the real character and effect of the acts, and not according to the names given them.
And when it is made perfectly apparent as it is here, that the real substance and effect of these two orders, as respects all that portion which relates to the old road were, not to lay out, and cause to be opened, a new road, two rods in width, but merely to make a description, for record, of an existing highway, and cause it to be opened that width, it would be dealing with names instead of things to hold that this was the actual laying out of a new road not warranted by the statute. It is true, I think, that had this all been an entirely new route, the highway commissioners could not have laid out one part three rods in width and the other part two rods. As an entire act depending wholly for its validity upon the authorized proceedings of the commissioners, it would, I have no doubt, have been void. But this is no such case. The old road was in law a public highway independently entirely of any act or proceeding of the commissioners; and it is not denied that up to that point, the power exercised was perfectly regular. Though done under one head, and one
name, they were essentially two acts, perfectly severable, and it is clear that in such case, an error, or excess of authority in one would not invalidate the other. This being so, it is not very material to inquire whether all the acts of the commissioners in describing the old road, and ordering it opened according to such description, were entirely unauthorized, because the alleged trespass was upon the new part of the road as laid out, and not upon the old road. Strictly, perhaps, in the case of an old road, which has become a public highway, by having been used as such for twenty years or more, and which has never been described and entered of record nor opened to the width of two rods, the order to open to such width should precede the survey and description, as the object of the description is to place upon the record a notice of the extent of the rights of the public. But it can not be material, in view of the question of jurisdiction, because the essential part is the order to open, and this may undoubtedly be lawfully made without any previous survey. The statute confers the power upon the highway commissioners to order all such roads opened to at least that width, without any preliminary proceeding whatever. It would, however, be more convenient, and far safer, to have a preliminary survey as in the present case, to the end that the order to open might be more definite and certain, and be executed without any danger of mistake or misapprehension. The act of making the survey is not complained of, and for the purpose of a description for record of the road when opened, it can not be material when it was made, so that it shall describe the road accurately when opened.
Viewing the proceedings in regard to this portion of the highway in question as proceedings to open an existing highway merely, even if the order interferes with the plaintiff's orchard, they do not come within the language of the prohibition of the statute against laying out a highway through an orchard. I am inclined to the opinion, however, that in such a case, the commissioners would have no right to deprive
an owner of the benefit of his fruit trees in an orchard of the growth of four years or over, by an order for the opening of an old road to the width of two rods. Strictly that is not laying out a road, but I think the spirit and policy of the act would protect the orchard in such a case. All that is found, however, on this subject, is "that the easterly line of said survey at the point, as shown upon the map, extended into an orchard of said plaintiff of the growth of seven years and over." It is not found that any of the trees of the orchard came within the survey, or that the owner would in any way be deprived of the beneficial use and enjoyment of any of his trees, by such survey or opening of the highway. This is necessary, in order to raise the question of jurisdiction as against the acts of the commissioners. Merely showing that one line extended into an orchard is not sufficient. (People v. Judges of Dutchess, 23 Wend. 360.) But if the necessary facts had been found, I do not think the entire order for opening the road would be rendered void by it. The order would still, I think, be valid for the opening of all the other portions of the road. This, however, is not material in the case, because in any view, even if the order for opening the old road was wholly void, it could not affect the validity of the order for laying out the new road, nor the order for opening the same. My conclusion therefore is, that the commissioners of highways had the power to do all that they have undertaken to do; and that the error, if any, is matter of form merely, and not of substance, and relates exclusively to that portion of the route designated as the old road, which from the facts found was then a lawful highway; and does not affect the other portion of the route which was properly laid out. The part where the acts complained of were done, having been regularly laid out as a highway, and such acts having been duly authorized, were lawful, and no action could be maintained.
The judgment must therefore be reversed and a new trial granted, with costs to abide the event.