Weber v. Stagray

• Decision Date: 07 June 1889
• Citation: 42 N.W. 665,75 Mich. 32
• Court: Michigan Supreme Court
• Parties: WEBER v. STAGRAY ET AL.

42 N.W. 665

75 Mich. 32

WEBER v. STAGRAY ET AL.

Supreme Court of Michigan

June 7, 1889

Error to circuit court, Bay county; GEORGE P. COBB, Judge.

Action by Charles Weber against William Stagray and Peter Van Erp. Judgment for plaintiff, and defendants bring error.

SHERWOOD C.J.

The plaintiff brought his action in justice's court to recover damages for trespass upon his lands, aggravated by the removal of his fences. Under a plea of title the defendants, claiming the locus in quo was a public highway, caused the suit to be removed into the circuit court for the county of Bay, where the cause was tried, and Judge COBB directed the jury to find for the plaintiff, and allowed them to assess the damages. They did so, and judgment was entered accordingly. The defendants bring error. The highway was originally established by user, and the defendants claim that the land upon which the trespass was committed was taken under regular proceedings for the purpose of altering the highway by making it the lawful width, and in removing the plaintiff's fence therefrom under a proper order from the commissioner of highways. The proceedings under which the defendants claim to make their defense are contained in chapter 29, How. St. �� 1296-1305. They were for the purpose of altering the road, and condemning plaintiff's land for that purpose. They were by the defendant Stagray, as commissioner of highways of the township; and, while the alteration was made and determined by him, he did not allow the plaintiff any damages for the land taken. An appeal was taken to the township board from the determination of the commissioner, and they dismissed the plaintiff's appeal, thus leaving the matter of the alteration as the commissioner had determined it. No certiorari has ever been taken from his proceedings. At the proper time the statutory notice to plaintiff was given by the defendant commissioner to remove his fences from the highway as thus altered and laid. Plaintiff refused to comply, and the commissioner Stagray and the other defendant removed them for him, under section 1313, How. St. It is in removing such fences that the trespass is alleged by plaintiff to have been committed.

On the part of the plaintiff it is claimed: First. The description of the land contained in the notice does not contain all the land condemned and taken, upon which the alleged trespass was committed. The notice, we think however, is sufficient to apprise the party of the nature of the defense, and to allow all testimony offered and admitted pertinent to the subject and issue. Second. Plaintiff insists the action of the commissioner was premature, irregular, and therefore void, and plaintiff therefore had the right to maintain this suit, and ought to be allowed to recover. Mr. Stagray had previously, as commissioner of highways, entertained proceedings taken for the purpose of discontinuing said highway altogether, and...