Galatian v. Gardner

Per Curiam.

The simple point of fact in this case is, whether the locus in quo was not a “ road used as a *108 public highway for twenty years or more next preceding" the 21st of March, 1797.” If this fact be in favour of die defendant, it amounts to a justification of the tres» pass; for the statute (Laws of N. Y. vol. 1. p. 595.) declares, that every such road shall be taken and deemed a public highway,- although no record thereof has been made. The evidence in this case greatly preponderates in favour of the usage. The defendant produced seven witnesses, all of whom had known the road for above twenty years next preceding March, 1797, and all declare, that it had been used during all that time as a public highway, leading to the dock and landing of the defendant.

The witnesses on the part of the plaintiff do not essentially contradict the defendant’s witnesses. They principally go to prove that the road in question, at the intersection of Water-street, had been removed some feet more to the south than it was formerly, but they admit that it had not varied where it passed over the premises of the plaintiff; and they all concur in the declaration that there is no way of getting to the dock and landing in question but by means of this road; for that First-street has never been used, and ever has been, and still is, impassable. There is likewise one important fact established by the witnesses, and not contradicted by any, and that is, that from the year 1743 there had been a ferry kept at the defendant’s landing, under a charter granted to Alexander Golden; and that before the war, during the war, and for some time after the war, there was no other ferry kept across the Hudson, at New-burgh, but the one at the defendant’s dock.

The verdict ought, therefore, to be set aside, and a new trial granted, upon payment of costs.

New trial granted.