14 Wis. 483 | Wis. | 1861
By the Court,
This action was commenced in a justice’s court to recover a penalty for obstructing a
The language of our statute (R. S., chap. 120, sec. 51) is the same as that of the New York statute of 1824 (6 Wend., 466), and of the subsequent Revised Statutes. 20 Wend., 100. It provides that “ in every action where the title to lands shall in any wise come in question,” the defendant may, by answer in writing, show the facts, file the required bond (sec. 52), and thereupon (sea 54) the justice shall make an entry thereof in his docket, cease all further proceedings in the case, and certify and return the cause to the circuit court of the county, which shall (sec. 55) proceed therein as if the action had been originally commenced in that court. Civil actions for the recovery of penalties or forfeitures, are to be conducted in the same manner and subject to all the provisions of law concerning personal actions. R. S., chap. 155, secs. 1, 2.
The courts of New York have repeatedly held, under the statutes referred to and others of similar import, that a plea of right of way puts in question the title to lands and deprives a justice of jurisdiction. In addition to the cases cited by counsel for appellant, see those referred to in the opinion of this court in Manny vs. Smith, 10 Wis., 511. If it might be said that the legislature did not adopt this language with reference to the construction which it had received from the courts of that state, still we should not be inclined to depart from those decisions. It is obvious to us that the spirit and policy of our laws .as well as the language
The cases of Parker vs. Van Houten, 7 Wend., 145, and Fleet vs. Youngs, idem, 291, cited by respondent’s counsel, are not in conflict with the decisions to which reference has been made. Those cases, or more particularly the last one, turned on the peculiar provisions of the statutes in relation to prosecutions for obstructions and encroachments upon highways. They may, perhaps, be regarded as having overruled the case of The People vs. Onondaga Common Pleas, 2 Wend., 263, in which it was decided that the title to land might be put in issue in an action for a penalty for obstructing a highway. Parker vs. Van Houten, seems to have gone off on the ground that the plea interposed before the justice did not raise the question of right of way — that the defendant pleaded merely that the locus in quo was his soil and freehold, which, the cqurt say, was not. inconsistent with the easement claimed by the public and could not possibly constitute a defense, and that if the plaintiffs had demurred to the plea they must have had judgment. Fleet vs. Youngs was placed on the provisions of the act regulating highways in the counties of Long Island, though the court speaks of the general road act as being in substance the same. The decision of the justice rejecting the defendant’s plea of title in himself exclusive of the highway, was sustained on the ground that the fact of encroachment had been determined by the previous decision of the commissioner of highways—
It is furthermore to be observed that the answer in
The objection that the constable’s return of service of the summons was insufficient to give the court jurisdiction over ,-the person of the defendant, was waived by the defendant’s appearance and answer to the merits of the action. Lowe vs. Stringham, ante, p. 222.
The order of the circuit court must therefore be reversed, and the cause remanded for further proceedings to be had therein agreeably to the foregoing opinion.