The Chaecellok.
The complainant, Mrs. Tainter, owns a lot of land in Mor-ristown. It is bounded on the south by South street, and on the west by Elm street. The fence in front of her lot along Elm street, has stood where it does now for thirty-seven years. Within it, at the distance of two feet, stands a hedge of arbor vitee, and also a row of five evergreen trees, of some years’ growth; and at the edge of the sidewalk, seven feet from the fence, stand fourteen large elm trees.
The defendants, the mayor, recorder, aldermen, and common councilmen of Morristown, are the municipal governors of that town, and have, by their charter, power by ordinance to prevent and remove' obstructions, encroachments, and [56]*56encumbrances, in and upon all streets, highways, and sidewalks, and to regulate the planting and preserving of ornamental shade trees in the streets, parks, and grounds of the town. They have power, also, to appoint a commission to run, mark, lay out, and designate the lines and courses of any street that are not ascertained and clearly designated.
The defendants caused a survey of Elm street to be made by the town surveyor, and a map of such survey, giving the bounds of that street, to be filed in the office of the town clerk. This survey took in a gore of the complainant’s lot, on the east side of the street, five feet ten inches wide on South street, and five chains eighteen links long along Elm street. And on the 24th of May, 1867, the defendants passed an ordinance directing the fence and other obstructions on that gore to be removed, and the street to be opened and cleared out to the width laid down on the map. And they caused a notice to be served on the complainant to remove the fence and other obstructions on the gore within twenty days.
The complainant insists that the defendants have no right to cause her fence and improvements on that gore to be removed, because Elm street has never been laid out as a street by any competent authority, and has no legal existence except by dedication or usage, and has no limits except such as have been indicated or established by usage; and because, if it has been laid out, the lines of it cannot now be ascertained, and because she, and those under whom she claims, have had peaceable and exclusive possession of it for thirty-seven years, and should not now be disturbed in these improvements.
The defendants answer, that Elm street was laid out as a public highway, by six surveyors of the highway, according to law, on the 2d day of September, 1786, by a return dated on that day, and recorded on the fifth of the same mopth, in the record of roads, in the office of the clerk of the county, and verify this by a duly authenticated copy of the return annexed to the answer.
[57]*57They further answer, that the monuments called for by the return are easily found, and the true limits and courses of the road ascertained with accuracy and certainty, and that the survey made and filed by them gives the true location and limits of it. They admit that the west side of said street, at its junction with South street, is at a point indicated in the bill; that is, one foot easterly of a large elm tree standing there, which the complainant alleges is sixty-seven feet six inches distant along the north side of South street from her fence. But defendants answer that Elm street was laid out sixty-six feet wide, as appears by the return, and that it meets South street, not at right angles, but at an angle of one hundred and fifteen degrees, and that the distance across from the elm tree to the fence of the complainant, at right angles to the course of Elm street, is sixty-two feet, which will locate the complainant’s fence at a distance of sixty-one feet from the west side of the street, or five feet at that point within the street.
The defendants admit that the fence along Elm street has stood whore it now stands, at the j unction of South street, since 1829, but not for the whole front of the lot. And they answer that before 1829. the fence in front of complainant’s lot stood exactly on the line laid down in their survey of the street; that in 1829, Albert Barnes being the owner of the lot, and being informed that he had the right to extend his fence about six feet further into the street at South street, did so extend it; and this part of the answer is verified by the affidavit of Albert Barnes annexed to the answer.
The defendants set out the description in a deed for this lot, made by James Rogers to INathan Ford, dated May 5th, 1804 — a deed through which the complainant derives title. In this deed, the south side of this lot, along South street, is nine links, or six feet, less than in the deed from James Wood to Albert Barnes, dated March 12th, 1829, the oldest of a series of deeds set forth in the hill of the complainant, all describing the lands by the same courses and distances; the [58]*58intermediate deeds appear not to have given courses-and distances.
These allegations of the answer are verified by the affidavits of the town surveyor and others, and by copies of deeds, duly certified, annexed to it.
Eor the purpose of this motion, the facts must be taken as established: that Elm street was laid out by surveyors in 1786, of the width of sixty-six feet; that prior to 1829 it was open at the front of the complainant’s lot to the width of sixty-six feet, and to the line which the map and survey of the defendants lay down as the east side .of the street; that in 1829, Albert Barnes, who then owned the lot, moved out the fence to the line where it now stands, or nearly to that line, where the fence has since stood, and the owners have planted the trees and shrubbery inside of it, where they now stand, without any interference by the public authorities; that the monuments of the survey of the road can be ascertained with accuracy, and locate the street where the survey and map of the defendants locate it.
The injury alleged by the complainant is one from which she is entitled to be protected by injunction. If the case stated in her bill was not denied, the injunction would not be dissolved. The injury by unlawfully cutting down fences, shade trees, and ornamental shrubbery, is irreparable, and ought to be suppressed by the preventive powers of this court.
The complainant placed her title to relief on three grounds: that the road was never lawfully laid out • that its boundaries cannot be ascertained by survey; and that thirty-seven years adverse possession gives her the right to this gore, if it was clearly within the limits of a lawfully laid out highway.
The answer and the return of the surveyors show that Elm street was laid out according to law. It is objected that it does not appear by the return that proper notices of the meeting of the surveyors were put up, as required by the act of March 11th, 1774, (Allinson’s Laws 386,) the road act in force at this return. That act does not, as the later [59]*59i : .íñí • : ■. require the surveyor? m tab' p of and be sat-is! -.1 th,< t iho notice directed liad boon g--vit, nor does it make such proof a part, of their return. According to the principles by which courts of law are governed, under that act a return would not be set aside when brought up directly on certiorari, because the evidence of this did not appear in the surveyor’s return.
In this case the return comes up collaterally, and cannot be judged void, or disregarded, for any irregularity or deficiency, if the surveyors had jurisdiction of the subject matter.
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The Chaecellok.
The complainant, Mrs. Tainter, owns a lot of land in Mor-ristown. It is bounded on the south by South street, and on the west by Elm street. The fence in front of her lot along Elm street, has stood where it does now for thirty-seven years. Within it, at the distance of two feet, stands a hedge of arbor vitee, and also a row of five evergreen trees, of some years’ growth; and at the edge of the sidewalk, seven feet from the fence, stand fourteen large elm trees.
The defendants, the mayor, recorder, aldermen, and common councilmen of Morristown, are the municipal governors of that town, and have, by their charter, power by ordinance to prevent and remove' obstructions, encroachments, and [56]*56encumbrances, in and upon all streets, highways, and sidewalks, and to regulate the planting and preserving of ornamental shade trees in the streets, parks, and grounds of the town. They have power, also, to appoint a commission to run, mark, lay out, and designate the lines and courses of any street that are not ascertained and clearly designated.
The defendants caused a survey of Elm street to be made by the town surveyor, and a map of such survey, giving the bounds of that street, to be filed in the office of the town clerk. This survey took in a gore of the complainant’s lot, on the east side of the street, five feet ten inches wide on South street, and five chains eighteen links long along Elm street. And on the 24th of May, 1867, the defendants passed an ordinance directing the fence and other obstructions on that gore to be removed, and the street to be opened and cleared out to the width laid down on the map. And they caused a notice to be served on the complainant to remove the fence and other obstructions on the gore within twenty days.
The complainant insists that the defendants have no right to cause her fence and improvements on that gore to be removed, because Elm street has never been laid out as a street by any competent authority, and has no legal existence except by dedication or usage, and has no limits except such as have been indicated or established by usage; and because, if it has been laid out, the lines of it cannot now be ascertained, and because she, and those under whom she claims, have had peaceable and exclusive possession of it for thirty-seven years, and should not now be disturbed in these improvements.
The defendants answer, that Elm street was laid out as a public highway, by six surveyors of the highway, according to law, on the 2d day of September, 1786, by a return dated on that day, and recorded on the fifth of the same mopth, in the record of roads, in the office of the clerk of the county, and verify this by a duly authenticated copy of the return annexed to the answer.
[57]*57They further answer, that the monuments called for by the return are easily found, and the true limits and courses of the road ascertained with accuracy and certainty, and that the survey made and filed by them gives the true location and limits of it. They admit that the west side of said street, at its junction with South street, is at a point indicated in the bill; that is, one foot easterly of a large elm tree standing there, which the complainant alleges is sixty-seven feet six inches distant along the north side of South street from her fence. But defendants answer that Elm street was laid out sixty-six feet wide, as appears by the return, and that it meets South street, not at right angles, but at an angle of one hundred and fifteen degrees, and that the distance across from the elm tree to the fence of the complainant, at right angles to the course of Elm street, is sixty-two feet, which will locate the complainant’s fence at a distance of sixty-one feet from the west side of the street, or five feet at that point within the street.
The defendants admit that the fence along Elm street has stood whore it now stands, at the j unction of South street, since 1829, but not for the whole front of the lot. And they answer that before 1829. the fence in front of complainant’s lot stood exactly on the line laid down in their survey of the street; that in 1829, Albert Barnes being the owner of the lot, and being informed that he had the right to extend his fence about six feet further into the street at South street, did so extend it; and this part of the answer is verified by the affidavit of Albert Barnes annexed to the answer.
The defendants set out the description in a deed for this lot, made by James Rogers to INathan Ford, dated May 5th, 1804 — a deed through which the complainant derives title. In this deed, the south side of this lot, along South street, is nine links, or six feet, less than in the deed from James Wood to Albert Barnes, dated March 12th, 1829, the oldest of a series of deeds set forth in the hill of the complainant, all describing the lands by the same courses and distances; the [58]*58intermediate deeds appear not to have given courses-and distances.
These allegations of the answer are verified by the affidavits of the town surveyor and others, and by copies of deeds, duly certified, annexed to it.
Eor the purpose of this motion, the facts must be taken as established: that Elm street was laid out by surveyors in 1786, of the width of sixty-six feet; that prior to 1829 it was open at the front of the complainant’s lot to the width of sixty-six feet, and to the line which the map and survey of the defendants lay down as the east side .of the street; that in 1829, Albert Barnes, who then owned the lot, moved out the fence to the line where it now stands, or nearly to that line, where the fence has since stood, and the owners have planted the trees and shrubbery inside of it, where they now stand, without any interference by the public authorities; that the monuments of the survey of the road can be ascertained with accuracy, and locate the street where the survey and map of the defendants locate it.
The injury alleged by the complainant is one from which she is entitled to be protected by injunction. If the case stated in her bill was not denied, the injunction would not be dissolved. The injury by unlawfully cutting down fences, shade trees, and ornamental shrubbery, is irreparable, and ought to be suppressed by the preventive powers of this court.
The complainant placed her title to relief on three grounds: that the road was never lawfully laid out • that its boundaries cannot be ascertained by survey; and that thirty-seven years adverse possession gives her the right to this gore, if it was clearly within the limits of a lawfully laid out highway.
The answer and the return of the surveyors show that Elm street was laid out according to law. It is objected that it does not appear by the return that proper notices of the meeting of the surveyors were put up, as required by the act of March 11th, 1774, (Allinson’s Laws 386,) the road act in force at this return. That act does not, as the later [59]*59i : .íñí • : ■. require the surveyor? m tab' p of and be sat-is! -.1 th,< t iho notice directed liad boon g--vit, nor does it make such proof a part, of their return. According to the principles by which courts of law are governed, under that act a return would not be set aside when brought up directly on certiorari, because the evidence of this did not appear in the surveyor’s return.
In this case the return comes up collaterally, and cannot be judged void, or disregarded, for any irregularity or deficiency, if the surveyors had jurisdiction of the subject matter. The proceeding to lay out a road is a proceeding in rem,, not against the person, ft requires no citation or personal notice; public advertisements only are directed. Uothing is required to give jurisdiction of the person. Of the subject matter — the laying out roads — the surveyors had unquestioned jurisdiction, and their acts, when within their jurisdiction, cannot be questioned collaterally. Besides, in this case, where the road has been used by the public’eighty years under that return, the court would presume that the proceedings of the surveyors were lawful, although matters requisite to give the surveyors jurisdiction did not appear in the return.
The courses and lines of this road can be ascertained with reasonable certainty. The affidavit of the surveyor, the old elm tree on the westerly side of the road, the setting out the fence into the road by Barnes, the difference in the length of the south side in the deed to Barnes from that in the older deed, and the survey from the calls in the return, show as much certainty of location as can bo had in any old road, or in moat of those recently laid out. I cannot say, therefore, that it is a case in which the defendants wore bound to appoint a commission to ascertain the lines before proceeding to remove the encroachments.
The possession for over twenty years can avail the complainant nothing. It is well settled that time docs not run against the state, or the public, by analogy to the statute of limitations against individuals, but only where the state or [60]*60public are expressly included. This is a wise and wholesome principle that I feel no inclination to disregard or to narrow. To protect highways from encroachments that it is the business of no one to resist, requires that the public be allowed to resume its rights at any distance of time, disregarding any loss to those who have appropriated and erected improvements on the public domain, or to the more innocent purchasers from them.
The authorities on this point are ably collected and digested in the opinion delivered by Chief Justice Beasley, sitting in this court as master-, in place of the Chancellor, in the case of Cross v. Morristown, 3 C. E. Green 305, which opinion is of itself weighty authority on this point. The act of March 24th, 1859, Nix. Big. (4th ed.) 836, § 78, referred to by complainant’s counsel, does not affect this case; both by its terms and the recitals in the preamble, it applies only to roads ■which have been laid out, but not opened, used, or worked, and merely says that if not opened, used, or worked for twenty years after being laid out, they shall be vacated.
The legislative recognition of the necessity to pass this act to affect that purpose, is confirmation of the principle that without such statute time will not bar the public.
The equity of this bill being fully answered, and the answer being supported by documents and affidavits that leave in my mind no doubt of its truth, the injunction must be dissolved. If I had serious doubts as to the truth of the statements in the answer, the grave inj ury in this case might call upon me to exercise the discretion sometimes assumed by the court, of retaining the injunction until the decision of the cause.