Gorham v. Withey
Michigan Supreme Court
Error to Kent. (Montgomery, J.) Trespass. Defendant brings error. The action was brought under How. St. § 1372 to recover a penalty for maintaining certain alleged encroachments in a highway, the “ encroachment ” being in fact three rail fences running quite across the road. This fact appeared from the notice to remove them, served by the commissioner of highways upon the defendant.
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Error to Kent. (Montgomery, J.) Trespass. Defendant brings error. The action was brought under How. St. § 1372 to recover a penalty for maintaining certain alleged encroachments in a highway, the “ encroachment ” being in fact three rail fences running quite across the road. This fact appeared from the notice to remove them, served by the commissioner of highways upon the defendant. The latter offered to prove that he owned the land in fee; that the fences were portions of the enclosures of his fields, and that no highway had been laid out. He admitted however that he had not notified the…
1Opinion of the CourtSherwood, J.
This was an action of trespass, brought before a justice of the peace under the provisions of chapter VI of Act No. 243 of the Session Laws of 1881, to recover the penalty named in the second section of that chapter for failure to remove certain fences alleged to be encroachments upon a highway.
This chapter provides for the recovery of the penalty in cases of encroachment only, and the case sought to be proved on the tx-ial was one of obstruction, in which, under the facts stated upon this record, the justice had no jurisdiction.
The distinction here stated was recognized and enforced by this…
2Cases cited1 opinion
- City of Grand Rapids v. HughesMichigan Supreme Court · 1866
3Cited by1 opinion
- People v. EckersonAppellate Division of the Supreme Court of the State of New York · 1909