Gorham v. Withey

Sherwood, 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 Court in a case which arose under the city ordinances of Grand Kapids as early as 1866, in which Mr. Jixstice Cooley, in delivering the opinion of the Coxxrt, said: “ Oxxr laws have always made a distinction between cumbering or obstructing a public way, and encroaching upon it. The former term has been applied to impediments to travel and passage placed in the open street, and tending to make its use difficult or dangerous; while the latter has embraced the actual enclosure of a portion of the street by fences or walks, or occupation by buildings. The mode of dealing with the two offences has almost always been different, and the penalties also.” City of Grand Rapids v. Hughes 15 Mich. 54. The penalty under the statute invoked in aid of the plaintiff’s cause for obsti’ucting the highway is twenty-five dollars for each offense, while that for encroachment is fifty cents per day. [52] "We are all satisfied with the exposition of the law as given by Mr. Justice Cooley in the case cited, and the judgment must be reversed with costs. The other Justices concurred.