Lawrence v. Kirby

Hooker, J. The accompanying plat will serve to explain the situation of the parties at the time the controversy now before us arose. Prior to 1882 a road extended east, between sections 1 and 12, to within 80 rods of the east section line, and from thence north to the county line. In 1882 that portion of the road running north and south was discontinued; proceedings to that end being taken [434] and assented to by the inhabitants of the vicinity. Lawrence, who owned 120 acres north, and 52 and a fraction south, of the east and west road, then built a fence on the section line, in the middle of said east and west road, from the east end thereof to the west side of the 52-acre parcel, and connected it there with a north and south fence, which he built across the road, putting a gate in the south, portion of Said cross-fence, and he has since maintained said fences and gate, except as in 1895 he removed the gate and south half of the cross-fence a short distance to the east to avoid being inconvenienced by a hill at that point. The effect was to throw the north half of that portion of the road so fenced into a cleared field, where it has since been used as improved land. The south half was thrown into a pasture lot;. the 52 acres never having been cleared and plowed. Lawrence died in 1895, and his lands have been divided; the 52-acre parcel becoming the property of A. E. Lawrence, this complainant. [434] In 1903 the highway commissioner served a notice upon the complainant, notifying him that the gate in question and a fence connecting to the gate across the road were an encroachment upon the highway, and ordering him to remove the same. Thereupon the complainant filed the bill in this cause, alleging the foregoing facts, and upon information and belief that the commissioner threatened to forcibly enter and remove the same, and take possession of a portion of the premises, and to destroy his fences and plow up, and grade the land, under the false claim that it was a public highway. The bill prayed a temporary and permanent injunction and that his title be quieted. The temporary injunction was issued. Defendant answered denying the material averments of the bill but admitting that he caused the notice to be served, and claiming the land to be a lawful highway. The answer contained the further averment that the defendant expected and intended to follow up the service of said notice by taking such further proceedings in furtherance thereof as the law in such case made and provided should point [435] •out, with a view to recovering and freeing from obstruction said highway. . The proofs in the case show title in the complainant as found by the learned circuit judge. It is within the ¿jurisdiction of equity to restrain highway officers from trespassing upon the lands of a private person under the claim that it is a public highway and to try'and quiet his title. Gamber v. Holben, 5 Mich. 334; Lyle v. Lesia, 64 Mich. 18; Neal v. Gilmore, 141 Mich. 519. If this were not so, the record is not in a condition to permit of a dismissal of the bill, on the ground that the proceeding should have .been at law rather than in chancery; the case having been heard upon the merits, and without objection, and without raising that question. Bennett v. Nichols, 12 Mich. 22. The decree is affirmed, with costs. McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.