19 Wis. 593 | Wis. | 1865
By the Court,
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
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.