50 Mich. 61 | Mich. | 1883
This proceeding was begun by Albert Stookey, highway commissioner, before a justice of the peace of Jackson county, to remove encroachments from a highway. Mr. Gregory, the person summoned, denied both the encroachments and the existence of the highway as one regularly laid out, and did not appear or recognize the validity of the inquest.
Leaving all other considerations out of view, it is enough for the disposition of these proceedings to call attention to the fact that neither the notices nor the finding of the jury furnish any means of ascertaining the extent of the alleged encroachments, or the distance from what is claimed to be the true highway line. The order is required to “ specify the width of the road, the extent of the encroachment, and the place or places in which the same shall be, with reasonable certainty.” Oomp. L., § 1290. The finding is very brief and is as follows : “ That the road known as the Daniels road, situated in the township of Pulaski, county of Jackson, and State of Michigan, is encroached upon as follows, to-wit: By rail fence, stone row, rail piles, hay barn and sheds, made by one Bussell P. Gregory, as specified in the records of Percy Cook, county surveyor.”
This finding does not contain a single one of the statu
But in the light of our previous decisions we feel bound to remark on some other objections — not more fatal, because these are fatal — but going to the propriety of attempting such an inquiry at all. See Parker v. People 22 Mich. 93; Roberts v. Highway Com'rs of Cottrellville 25 Mich. 23; People v. Smith 42 Mich. 138; Campau v. Button 33 Mich. 525 ; Gregory v. Stanton 40 Mich. 271.
These cases, while some of them are in point as to the sufficiency of the finding in cases of jurisdiction, also hold ■distinctly that no jurisdiction exists by these special and •summary proceedings to determine disputes concerning private estates or boundaries. No one can be disturbed in his •estate without the right to have his rights determined by legal process. It is only when the existence and bounds of the highway are not really questionable, that the question of encroachment can be thus summarily settled. The law does not contemplate any such wrong or absurdity as the submission of questions of title to land to anything but the judicial courts.
It is quite manifest that in this case there seems to have 'been an idea that the ex porte action of surveyors and commissioners was entitled to credence and authority upon the true lines and the fact of encroachment. Neither of them can affect vested rights or settle controversies. They may be useful witnesses, when they speak of matters with which they are familiar, but they have no greater right than any ■one else to determine starting points or boundaries. Stewart v. Carleton 31 Mich. 270; Cronin v. Gore 38 Mich. 381.
It also appears .that plaintiff claims to have occupied on
The Legislature of 1881 provided expressly that in all cases when the encroachment on the public right shall be denied, an action of trespass may be brought, and summary proceedings shall not lie. Laws 1881, pp. 307-8. An adequate equitable remedy against encroachments is also provided. Laws 1877, p. 61; Laws 1881, p. 255.
The proceedings must be quashed with costs against the commissioner.
The statute provides for damages as well as costs to be awarded by the jury against the complainant, (Comp. L. § 1296) but we have no authority that we can discover to award anything beyond costs.