persuaded that under the ninth and subsequent clauses of the will, and from the structure of the whole instrument, it was the intention of the testator to have each of these four trusts consist of a specific sum of twenty thousand dollars, in money value only, and that the executor would have performed his whole duty had he so established those several trusts by investing the amount of each in any authorized court security, and that had he done otherwise, and a loss resulted, he might well have been held to accountability for it. The residuary estate, for the purposes of these trusts, was to be diminished by $80,000. If, to constitute them, it was necessary to realize that sum, even at the cost of the whole of such residuary applicable under the will, the executor would have been protected in doing so. A specific gift of the securities of the estate as they might stand in executors' hands at the death of Mrs. Withers could not have been contemplated, for there was a power of sale; and it is impossible that the testator could have imagined, even, how the estate would be invested at the death of his widow. These four amounts were fixed capital sums, to be securely invested, without reference to the preservation intact, or the actual allotment in specie, of securities held by the executor. Nothing contrary to this, however, is to be inferred from the retention by the executor of the securities in the same form of investment in which they existed at the time of Mr. Withers' death; and he took the risk of that, and, by assent of all, paid interest for years to the beneficiaries on the several sums, without reference to what each class of securities earned. I am convinced that these trust sums are not to be augmented by any increase in value of the particular securities of the whole estate on the theory that portions of those precise securities should have been devoted to constitute the investment of each separate trust fund.

Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.

Kellogg, Rose & Smith, for appellants.

Shipman, Larocque & Choate, for respondent.

PER CURIAM. Judgment in this case is affirmed, with costs (1) to the plaintiff; (2) to the defendants Reuben B. Withers and others; (3) to the United States Trust Company, and to the New York Security & Trust Company, as trustee,-payable out of the estate of Reuben Withers,-upon the opinion of Mr. Justice PATTERSON at special term.

(70 Hun, 415.)

FLOOD V. VAN WORMER, Commissioner of Highways.

(Supreme Court, General Term, Third Department. July 8, 1893.)

HIGHWAYS-ENCROACHMENTS-REMOVAL-INJUNCTION.

Laws 1890, c. 568, § 105, provides that the commissioner of highways shall serve notice on an abutting owner to remove an encroachment within a certain time, and if the owner refuse he shall forfeit $25, and the commissioner may remove the encroachment, and bring action against the owner for the expense, or he may bring an action to compel the owner to remove it. Held that, where an order for removal of a building has been served, an injunction to restrain the threatened injury may be maintained without waiting for anything further.

Appeal from judgment on report of referee.

Action by John Flood against Henry Van Wormer, as commissioner of highways of the town of Rotterdam, to restrain the removal of plaintiff's house as an encroachment on the highway. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM, J.

Daniel Naylon, Jr., (Alonzo P. Strong, of counsel,) for appellant. Lewis Cass, (Jacob H. Clute, of counsel,) for respondent.

MAYHAM, P. J. This is an appeal from a judgment entered upon the report of Hon. Charles O. Tappan, as referee in an action in equity to restrain the defendant, as commissioner of highways, from proceeding to remove plaintiff's house, which, it was alleged, encroached upon the public highway, and which he was about to remove as an alleged encroachment. The defendant, at the time of the commencement of the action, was, and for some time previous thereto had been, the sole acting commissioner of highways of the town of Rotterdam, Schenectady county. The plaintiff, since the 29th day of July, 1887, had been the owner in fee of the lands described in the plaintiff's complaint, and in the fall of 1887 erected a house on said premises, which has ever since remained thereon. On the 13th day of July, 1891, the defendant, acting as sole commissioner of highways, assuming, in good faith, to believe that the plaintiff's house encroached upon the public highway in his town, served, or caused to be served, upon the plaintiff, a notice and order, of which the following is a copy:

"To John Flood: Take notice that an order has been duly made by the commissioner of highways of the town of Rotterdam, a copy of which is hereby inclosed, and is part of this notice, and that you are required, according to the statute in such case made and provided, to remove the building or house therein mentioned in said order within sixty days of the service of this notice upon you.

"Dated July 13th, 1891.

Henry Van Wormer.

"Commissioner of Highways of the Town of Rotterdam."

To this notice was attached the following order:

"The undersigned, sole commissioner of highways of the town of Rotterdam, in the county of Schenectady, N. Y., having ascertained that the public highway on said town known as the 'Schenectady & Duanesburgh Plank Road,' leading by and in front of the premises of John Flood, in said town, is encroached upon the northerly side thereof by the farmhouse, the property of the said John Flood, the extent of which encroachment is as follows, viz.: The southerly side or front of said farmhouse is in on said highway to the following extent: All that piece of land south of a straight line passing through a point in the easterly side of said house, eight and nine-tenths feet (8 9-10) north of the southeasterly corner of said house, westerly to a point in the westerly side of said house two and two-tenths feet (2 2-10) north of the southwesterly corner of said house, is a part of said highway. This encroachment is arrived at by a survey which I have caused to be made of said highway, which survey shows that the northerly points and limits of said highway run through said building herein referred to, and along this said straight line herein described, and that all that piece of land which lies under said building south of the northerly bounds of said highway or straight line herein described is a part of the public highway aforesaid. It is further ordered by said commissioner of highways of said town that the said building or house be removed so that said highway be opened and unobstructed, and free from encroachment, and of the breadth which was originally intended, which was three rods, as appears by the description of said highway on record in the town clerk's office in the town of Rotterdam, and the Schenectady county clerk's office.

"Dated July 13th, 1891.

Henry Van Wormer, Commissioner.

"I have also caused stakes to be driven along the northerly bounds or limits of said highway along the encroachment herein referred to, which stake is connected in the order which driven by a straight line marks the northerly bounds or limits of said highway.

"Henry Van Wormer, Commissioner."

The evidence discloses that after the service of this notice, and before the commencement of this action, the plaintiff had an interview with the defendant, in which he asked the defendant if he intended to remove the plaintiff's house when the 60 days were up, to which the defendant replied: "First, I will collect the twenty-five dollars ($25) fine, and then I will go on and move it." The evidence also shows that the defendant has not removed, or in any attempted to remove, the plaintiff's said house, or in any way interfered with or damaged the plaintiff's house or premises, except by service of the above notice and copy order. The complaint alleges that the plaintiff feared, and had reason to believe, that the defendant would remove his house, in pursuance of said order, under the statute, without any legal proceeding to determine the question whether or not he, at the time of said notice, encroached upon the highway. The highway in question had been in existence, and used as a highway, for many years before 1849, as a public road, leading from Schenectady westerly to Duanesburgh; but there is no evidence that it had ever been laid out or recorded as a public highway, otherwise than by the records of the laying out of the Schenectady & Duanesburgh Plank Road, nor does it appear what the width of said highway was before said plank road was laid out, except, along said plaintiff's premises, it had been divided by fences on either side of the same for more than 40 years. The plank road which occupied and adopted portions of the highway in question was constructed by a corporation duly formed and incorporated on the 4th of June, 1849, under and in pursuance of chapter 210 of the Laws of 1847, and entitled "An act to incorporate the Schenectady and Duanesburgh Plank-Road Company, and for the construction of a plank road from the city to the valley of the Schoharie creek at a point in the division line of Schoharie and Schenectady counties." The evidence also showed that the plank-road company, on the 21st of February, 1849, applied to the board of supervisors of the county of Schenectady for authority to take the necessary land for the purpose of the construction of its road, in which application the route of the proposed road was described as in the article of association filed by the company, and upon such application the board of supervisors made an order, of which the following is a copy:

"The said company having produced the necessary evidence that the notice required of said act had been duly given to authorize them to present such application, the said application having been heard and duly considered by said board, and they being of opinion that public interest will be promoted by the construction of the road by the route proposed, and described in said application, it unanimously grants said application. Therefore, it is hereby ordered that the said Schenectady and Duanesburgh Plank Road be and they are hereby authorized to construct such road upon the route specified in said application to take the real estate necessary to be used for that pur

pose. It is further ordered that the clerk of the board furnish the said corporation with a copy of this order, certified by him for the purpose of being recorded."

The board of supervisors also appointed three disinterested persons to lay out said plank road. The evidence shows that said commissioners proceeded pursuant to the authority conferred upon them by the board of supervisors, and caused a survey and description to be made of the route of the plank road so laid out by them, and of the lands to be taken by the company for the construction of said road, and the actual survey made by the commissioners, and filed pursuant to law, was, as far as it related to the location of the plank road over and along the land of the plaintiff, put in evidence on this trial; but the learned referee finds that it did not appear upon the trial of this action that the course and distance of the center line of said road are correctly and accurately given in said order and survey. The case shows, and the referee finds, that the lands of which the plaintiff's premises are now a part abutted upon that part of the route of the plank road, as laid out by said order and survey described in the seventeenth course of said survey, and appears to have been south, 46 degrees west, as the compass bearings then were, and the length of the course about 17 chains. The evidence discloses that the plank-road company entered upon and took possession of the land in said survey about the year 1849 or 1850, and built a plank road on the same. The case does not disclose that any compensation was paid to the owner of these lands, which now belong to the plaintiff, by the plank-road company. About the year 1857 or 1858 the plank road and franchise were sold under a mortgage foreclosure, and the purchaser under such foreclosure continued to occupy the same as a plank road for a few months thereafter. He then abandoned all of said road, except the easterly end of two miles, which extended along the premises in controversy. The two miles not abandoned were continued to be occupied as a plank road by different owners and occupants down to about the close of the year 1889, when the two miles were also abandoned, and that portion of the plank road has since been used as a public highway in connection with the road previously abandoned. The proof shows, and the referee finds, that there has been no material change of the position of the location of the traveled part of the road along the premises in question from the time it was first used as a highway, or during the time it was used as a plank road, down to the present time. The proof also shows, and the referee finds, that when the plank road was first built, and from that time down to about the year 1887, there was along the north side, and extending from the toll house easterly to a point on the east line of the plaintiff's premises, a bank of earth and sand varying in height from 10 to 14 feet above the grade of the plank road, and that upon the top of this bank, and running easterly in a straight line, and parallel to the traveled part of the road, was a fence extending from the toll house to a point east of the east line of plaintiff's premises. Such fence, so long as it existed, and so far as it extended, was, and its line

now is, the northerly boundary of that part of said road or highway, as such boundary is and was fixed and located by the practical location of the fence on such northerly line or boundary. The referee also finds, upon what appears to be sufficient proof, that the plaintiff's house is not within the bounds of said highway, as defined by said fence. At the time the defendant made the survey upon which it is alleged the encroachment was established, the planks of the old plank road remained in position as they were when said plank road was constructed; and the southerly end of these planks were 32 feet distant from the plaintiff's house, and the northerly end of said planks were 24 feet distant therefrom, and the fence on the southerly side of said highway, opposite plaintiff's house, has remained substantially the same as when said order was made, and in the same location which it now is for more than 40 years.

Upon these facts the referee finds, as conclusions of law, that this road was a public highway before the plank road was laid out or constructed, and that after that it continued such highway, subject to the control of the plank-road company, and that the control of the commissioners of highways was in subordination to the rights acquired by that company; that the surveying and laying out of the plank road on the line of the highway did not make it a surveyed or recorded highway, but it remained a highway only to the extent that it had been used and occupied for that purpose, and that the use of its line by the plank road was a part of the evidence of user, competent and material upon the question of the location and extent of the highway; that as the highway had never been laid out, surveyed, and recorded as such, it became a highway only to the extent of the public user, and as the plaintiff's house did not stand within the limits of the highway, so used by the public as such, it was not an encroachment upon the highway, as claimed in the notice and order of the commissioner, and any removal of the same by the commissioner would be a wrongful invasion of the plaintiff's premises, and that the notice and order above recited, with the statement made by the defendant to the plaintiff, that he would first collect the fine, and then remove the house, was a threat to do the plaintiff's property an irreparable injury, for which the plaintiff would have no adequate remedy at law, and for which an injunction would lie.

We think the holding of the referee that this house did not encroach upon the highway is clearly sustained by the evidence. The plaintiff did not comply with the terms of the notice or order of the commissioner, and took no steps to remove the house, as required therein; and the commissioner, at the time of the commencement of this action, had not commenced an action to recover the penalty, nor had he taken any steps, except by the service of the notice and order, to remove the house as an alleged encroachment upon the highway. The principal question, therefore, on this appeal, is whether an equitable action for an injunction will lie, under the circumstances of this case. The general rule to be