Soule v. State , 19 Wis. 593 ( 1865 )

By the Court,

DixoN, O. J.

Whether a highway has been encroached upon, and whether it exists, are clearly distinguishable questions. A party may admit the existence of the highway, but deny the encroachment, in which case the method of determining it is that marked out by sections 102 to 108, inclusive, of chapter 19, R. S. In such case, no doubt, the order of the supervisors, the encroachment not being denied, and after that the verdict of the jury, not reversed or set aside, would be conclusive of the fact of encroachment. But these would be conclusive of that fact aloiie, as that is the only question which they are authorized to determine. But if the occupant denies the existence of the highway, which carries with it the question of encroachment in case he shall succeed, that is a question of which neither the supervisors nor the jury . have jurisdiction. It is not a proper question to be determined by three supervisors in an ex.parte proceeding, nor by a jury of six' freeholders summoned and empanneled before a justice of the peace. It has been frequently decided that it is a question involving the title to lands, and a justice cannot try it. State v. Doane, 14 Wis., 483, and Manny v. Smith, 10 id., 511, and oases there cited. The legislature have, therefore, very carefully excluded it from the consideration of the supervisors or the jury, when issue is taken upon it. And to this effect are both the authorities cited and relied upon by counsel for the defendant in error: Fleet v. Youngs, 7 Wend., 291, and Whiting v. Dudley, 19 Wend., 373. In the first case, Savage, C. J., says: “ By the general act a mode is pointed out by which the fact can be determined before a justice of the peace, whether there has been an encroachment, and this statute shows conclusively that the legislature did not suppose that title could come in question on an inquiry into the encroachment, or they would ham directed it to be tried before a different tribunal.” And in the latter it is observed by Cowest, J., that “a summary mode of settling the question of encroachment by an adj udieation of the commissioners or the finding of a j ury is provided by statute, and penalties imposed for breach of consequent orders to remove obstructions are recoverable, independent of the question of title.” If the title be involved, that is, the right of public way, resort must be had to a court of competent jurisdiction to determine that question, and the contesting occupant may rest upon his right of denial until an action is brought against him, and then make the defense, or he may, in a proper case, bring an action himself, and have it determined. In no case, it seems to us, can the order of the supervisors be conclusive upon this question, unless ratified and acted upon by the occupant. Whether the finding of the jury may under any circumstances be, as seems to have been held in Fleet v. Youngs, it is unnecessary now to determine.

In this case the suit was by the state against the plaintiff in error, under section 102, for forfeitures for neglecting and refusing to remove a fence from a highway “ laid out and opened,” upon which the plaintiff in error took issue. No proof of such highway was given. The judge erred in his refusal to nonsuit, and in the instruction given and that refused upon this subject.

Judgment reversed, and a new trial awarded.