Gregory v. Knight

• Decision Date: 18 January 1883
• Citation: 50 Mich. 61,14 N.W. 700
• Court: Michigan Supreme Court
• Parties: GREGORY v. KNIGHT and others.

14 N.W. 700

50 Mich. 61

GREGORY v. KNIGHT and others.

Supreme Court of Michigan

January 18, 1883

The finding of an inquest to ascertain an encroachment upon a highway must so describe the encroachment as to show in what direction and how far beyond the line of the highway it extends, so as to enable any one to know what is the line to which it must be removed, and what are the road boundaries.

It is not lawful for such inquest to pass on anything not set out in the compiaint, and no jurisdiction exists to determine disputes as to private estates or boundaries.

Such practical construction as occupation and fencing up to certain supposed boundaries of a highway, if acquiesced in for 20 years, would bind the public.

The legislature has authorized an action of trespass to be brought when an encroachment on a public highway is denied (Laws 1881, pp. 307-8,) and has also provided an adequate equitable remedy against such encroachments, (Laws 1877, p 61, and Laws 1881, p. 255.)

Certiorari to justice of the peace.

G.T. Gridley, for plaintiff in certiorari.

Gibson Parkinson & Ashley, for defendants in certiorari.

CAMPBELL J.

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 a regularly laid out road, 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 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 where the same shall be, with reasonable certainty." Comp.Laws, � 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 Russell P. Gregory, as specified in the records of Percy Cook, county surveyor."

This finding does not contain a single one of the statutory recitals, and it deviates also from the complaint which included nothing but the fence and stone row. It is impossible to regard such a finding as of any value whatever. The encroachment must be so described as to show in what direction and how far it extends beyond the line of the highway, so as to enable every one to know what is the line to which it must be removed, and what are the road bounds. And it cannot be lawful for the inquest to pass on anything not complained of. 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; [S.C. 3 N.W. 302;] 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...