State v. Jewell
| Decision Date | 01 July 1947 |
| Parties | STATE v. JEWELL et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Burnett County; Carl H. Daley, Judge.
On motion for rehearing.-[By Editorial Staff.]
Former mandate vacated and set aside.
For former opinion see 250 Wis. 165,26 N.W.2d 825.
Doar & Knowles, of New Richmond, and S. J. Auringer, of Grantsburg, for appellants.
John E. Martin, Atty. Gen., Stewart G. Honeck, Deputy Atty. Gen., and Beatrice Lampert, Asst. Atty. Gen., for respondent.
The defendants move for a rehearing on the ground that a part of the issues have been determined by the declaratory judgment and part have not; that therefore the judgment should be reversed with directions to proceed under sec. 86.04, stats.
The plaintiff on rehearing contends that the proceeding under sec. 86.04 is not an exclusive remedy for the removal of encroachments but only for the enforcement of forfeitures. Citing Wauwatosa v. Dreutzer, 1902, 116 Wis. 117, 92 N.W. 551.
Upon motion of the defendants that the judgments be reversed and that the whole matter be referred to the proper authoritiesunder sec. 86.04, we have only this to say: there is no disputing the fact that the Court had jurisdiction of the parties and the subject matter so far as the controversy related to title and therefore no reason exists for a retrial of that issue. The defendant's motion will be denied without costs.
The motion of the plaintiff on rehearing raises a serious question. The plaintiff contends that the remedy provided under sec. 86.04 is not an exclusive remedy. After a complete review of the question and especially in the light of the history of the section, we have concluded that the Court was in error in holding that the trial court was without jurisdiction to give injunctive relief.
Statutory provisions with respect to the removal of encroachments from highways begin with sec. 86 of the statutes of 1849. Sections 86 to 94, inclusive, as amended and supplemented by ch. 152, Laws of 1869, secs. 101 to 108, inclusive, provide for the removal of encroachments in substantially the same manner as is prescribed by the statutes down to the enactment of ch. 519 of the Laws of 1939.
The first case to come before the Court was State of Wisconsin v. Langer, 1871, 29 Wis. 68. That was a proceeding begun in the police court of the city of Fond du Lac and removed to the circuit court on plea of title to land. However, in that case, it was held that the highway in question had not been regularly established.
In Town of Jamestown v. Chicago, B. & N. R. Co., 1887, 69 Wis. 648, 34 N.W. 728, 729 it was held that a municipality might maintain an action in equity to compel the removal of encroachments caused by the construction of roadbed of a railroad company. The Court said: ...
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