Barteau v. City of Appleton

23 Wis. 414

• Court: Wisconsin Supreme Court
• Decided: June 15, 1868
• Status: Published

Opinion

Dm®-, C. J.

We take it to have been in evidence before the justice, that the premises in question had been opened and used as a street prior to the time they were encroached upon by the defendant with his lumber, fence, etc. The witness, West, testified, that he knew the street; that there was a track which any body knew was a street, and that it was used for the passage of teams. Under these circumstances, the question whether it was a lawful highway by act of the proper authorities or by dedication of the owners, was out of the case, for the reason that the defendant had precluded himself from going into that question by his failure to enter into the bond required-by section 52, chapter 120, R. S., at the time of joining issue in the action. Section 53 declares, if the bond be not delivered, the justice shall have jurisdiction of the case, and shall proceed therein, and the defendant shall be precluded in his defense from all evidence drawing in question the title to lands. The complaint was for obstructing a street, and the defendant, by his answer, denied that there was any such street. This showed that the title of lands would come in question, and it was incumbent on the defendant, if he would contest the allegation of. the complaint, or deny the legal existence of the street, to have executed and delivered his bond as required by the statute. His failure to do so was a waiver of that question^ and the cause of action was established by proof that the premises were used as a street; and if the plaintiff went farther, and attempted to establish a highway in law, it did not, we think, under the ■ circumstances, deprive the justice of jurisdiction so that he could not render a judgment upon facts which were clearly within his cognizance. See 15 Barb. 102; 8 id. 240; and 6 Hill, 44.

■ By the Court.— The judgment of the circuit court is affirmed.