State v. Jewell , 250 Wis. 165 ( 1947 )

The following opinion was filed July 1, 1947: The defendants move for a rehearing on the ground that a part of the issues have been determined by the declaratory judgment and part have not; that therefore the judgment should be reversed with directions to proceed under sec. 86.04, Stats.

The plaintiff on rehearing contends that the proceeding under sec. 86.04, Stats., is not an exclusive remedy for the removal of encroachments but only for the enforcement of forfeiture. Citing Wauwatosa v. Dreutzer (1902), 116 Wis. 117,92 N.W. 551.

Upon motion of the defendants that the judgment be reversed and that the whole matter be referred to the proper authorities under sec. 86.04, Stats., we have only this to say: There is no disputing the fact that the court had jurisdiction of the parties and the subject matter so far as to controversy related to title and therefore no reason exists for a retrial of that issue. The defendants' motion will be denied without costs.

The motion of the plaintiff on rehearing raises a serious question. The plaintiff contends that the remedy provided under sec. 86.04, Stats., is not an exclusive remedy. After a complete review of the question and especially in the light of the history of the section, we have concluded that the court was in error in holding that the trial court was without jurisdiction to give injunctive relief.

Statutory provisions with respect to the removal of encroachments from highways begin with sec. 86, ch. 16, R.S. 1849. Secs. 86 to 94, inclusive, as amended and supplemented by secs. 101 to 108, inclusive, ch. 152, Laws of 1869, provide for the removal of encroachments in substantially the same manner as is prescribed by the statutes down to the enactment of ch. 519, Laws of 1939.

The first case to come before the court was State of Wisconsinv. Langer (1871), 29 Wis. 68. That was a proceeding begun in the police court of the city of Fond du Lac and removed to the circuit court on plea of title to land. However, in that case, it was held that the highway in question had not been regularly established.

In Jamestown v. Chicago, B. N. R. Co. (1887) 69 Wis. 648,652, 34 N.W. 728, it was held that a municipality might maintain an action in equity to compel the removal of encroachments caused by the construction of roadbed of a railroad company. The court said:

"This question is a new one in this court, so far as we are advised; but we are inclined to sustain the action upon this ground: Towns in this state are responsible for the construction and repair of all highways within their limits. They are liable for damages to travelers occasioned by obstructions and defects, and they should have legal remedies commensurate in some degree to their liability. The statute gives to the supervisors of towns the care of highways in their respective towns, and makes it their duty to see that they are kept in repair, and to cause to be removed all obstructions therefrom."

This case was followed by Oshkosh v. Milwaukee LakeWinnebago R. Co. (1889) 74 Wis. 534, 43 N.W. 489, andEau Claire v. Matzke (1893), 86 Wis. 291, 56 N.W. 874.

The doctrine laid down in these cases was affirmed in Wauwatosav. Dreutzer (1902), 116 Wis. 117, 92 N.W. 551.

In addition to these cases it is generally true that where a remedy exists at common law and another is provided by statute, the latter is regarded as cumulative merely.

In Field v. Milwaukee (1915), 161 Wis. 393, 395,154 N.W. 698, the court said:

"Where a statutory remedy is provided for the enforcement of a common-law right without expressly, or by necessary inference, interfering with freedom to resort to the old remedy, the new one is cumulative unless the court, on grounds of public policy, sees fit to make its activity in that field more or less contingent upon the new remedy being exhausted."

Upon a review of the authorities and a reconsideration of the whole matter, it is considered that the remedy now provided by statute (sec. 86.04, Stats. 1945) is adequate, while the remedy provided by statute at the time the cases referred to were decided was inadequate. In spite of this change, we conclude that we should not now depart from the holding of prior cases, some of which are referred to above, to the effect that a municipality may maintain an action in equity to compel the removal of an encroachment where the title to land is in question. In this case there was no dispute as to the location of the buildings which were alleged to encroach on the highway. The only litigated question was as to the title to the land upon which it was alleged the buildings encroached.

By the Court. — The former mandate in this case is vacated and set aside. It is ordered, that the judgment appealed from be and the same hereby is affirmed. No costs to be taxed.