In this case the ballots were cast in such manner as to prevent a tie, but not to prevent an election. Counsel for relator claims that there was no significance in, and there could be no election upon, an "informal ballot." We cannot accede to such claim. When the law requires certain officers to be elected by ballot, there is and can be no such thing as an "informal ballot." All ballots cast under statutory requirements are formal and final, if there is an election, and cannot be repeated. "Informal ballots" are sometimes taken in a caucus or in a nominating convention; but they have no place in an election required by law for the election of officers. Neither was it necessary that Mr. Stone should have been declared elected. The result of the ballot expressed that fact, and it was the duty of the clerk to notify him of his election. But, had there been no election, the relator was not entitled to the office. It is only elected officers who hold until their successors are elected and qualified. Mr. Conrad was appointed to fill a vacancy, and he could only serve out the unexpired term. Had there been no election by the board, as claimed by relator, there would have been a vacancy in the office which the judge of probate could have filled by appointment until the first Tuesday of August after the appointment. The judgment of the circuit court must be reversed, with costs of both courts against relator, and the incumbent, Jerome B. Stone, is confirmed in his office of school examiner. SHERWOOD, C. J., MORSE and CAMPBELL, JJ., concurred. LONG, J., did not sit. THE TOWNSHIP OF LEBANON V. ALTIE C. BURCH. Highways-Encroachments-Equity jurisdiction. 1. Chapter 6 of Act No. 243, Laws of 1881 (How. Stat. §§ 1373- a-The highway law now in force was passed in 1881, and supplied methods for dealing with encroachments which had been previously wanting or were very imperfect. The former laws made no provision for dealing with encroachments except where the highway had been duly laid out according to law. Highways by user, or those in any way lacking complete regularity, were left without statutory redress. Parker v. People, 22 Mich. 93; Roberts v. Commissioners, 25 Id. 23. b-The proceedings in case of regularly laid out highways consisted of a species of inquest not in the ordinary course of law; and it was held by this Court that titles and boundaries actually disputed could not be subjected to any remedy which would deprive a party of his right to a trial after the course of the common law. Sheldon v. Kalamazoo, 24 Mich. 383; Roberts v. Commissioners, 25 Id. 23; Campau v. Button, 33 Id. 525; Gregory v. Stanton, 40 Id. 271; Willson v. Gifford, 42 Id. 454. c-The amendment to Comp. Laws 1871, section 5057 (How. Stat. § 6611), empowering courts in chancery to hear and determine all cases of encroachments upon the public highways, streets, and public alleys in organized townships and incorporated villages and cities, being merely an amendment of a general section in the chapter on courts of chancery, left the section, as before, to be construed with the rest of the statute, and subject to its provisions, as far as practicable. d-How. Stat. § 1371, authorizes the highway commissioner, in case of encroachment upon a township highway, to order its removal, which order must specify the width of the road, the greatest extent of the encroachment, and of what it con78 MICH.-41. 78 641 100 574 78 641 111 54 78 641 147 1166 e147 1170 sists, and the place or places encroached upon, with reasonable certainty; and until notice of removal is served upon the landholder he cannot be regarded as in fault, nor can he be called upon to remove anything not distinctly located by the notice; and, in cases of dispute as to existence and bounds of the highway, this summary remedy is forbidden, and the commissioner is specifically directed to proceed at law by trespass. How. Stat. § 1372; People v. Smith, 42 Mich. 138; Gregory v. Knight, 50 Id. 61; LeBlanc v. Kruger, 75 Id. 561. e-Under the highway law no township officer except the commissioner of highways has any right to meddle with highway matters. His duty is, when he thinks a road is encroached on, to satisfy himself in some responsible way, which will bear the test of a lawsuit, where the highway lines are, and how they are encroached upon. Until he complains, no one else can do so, and no one else can change his order; and when his order is disregarded, his remedy is specifically prescribed, and no remedy in any other form is as well calculated to reach the desired result. f-A bill cannot be filed to take into a court of chancery jurisdiction over a controversy of a legal nature without a verification of such facts as show its propriety. Moore v. Cheeseman, 23 Mich. 332.1 Appeal from Clinton. (Smith, J.) Argued November 5 and 6, 1889. Decided December 28, 1889. The Bill to remove encroachment from highway. Defendant appeals. Decree reversed, and bill dismissed. facts are stated in the opinion. Auten & Moss, for complainant. Will H. Brunson (Spaulding & Walbridge, of counsel), for defendant. [The points of counsel are stated in the opinion.REPORTER.] CAMPBELL, J. A bill in equity was filed in the circuit court for the county of Clinton to remove a fence alleged to be an encroachment on a highway. The court 1See Bernier v. Bernier, 72 Mich. 43 (head-note 2). granted a decree varying in extent from the case made. by the bill. Defendant appeals, claiming that the suit was not maintainable in equity on the record, and that the decree was not correct on any ground. The bill set up the ownership by defendant and by her grantors of the E. of the N. E. of section 17, in town 8 N., of range 4 W.; that as early as 1855 a fourrod wide highway was laid east and west, taking two rods in width of the north end of the lot, and was kept in use, of full width, for over 20 years, till 1883 or 1884, when defendant and Loren G. Burch, whose interest she now holds, built a rail-fence 80 rods long, including from 18 to 21 feet of the width of the highway, and only from 12 to 16 feet from the legal center of the highway; that defendant still maintains the encroachment, and refuses to remove it, claiming it is rightful, and no encroachment. This is the whole substance of the bill, except its prayer. It is not signed by the highway commissioner, or by any township officer, and is not verified. Defendant, saving all exceptions to the bill, admits that a highway was laid across the north end of the premises, including two rods of the land, and that Loren G. Burch built the fence now standing, which is a boardfence, in place of an old rail-fence previously there, and says the fence does not encroach on the two rods in question, but is on her own land, and fully two rods. south of the section line. Upon the testimony in the case, the only surveys which seem to have paid any close attention to the government field-notes agree in fixing the section corner where the line would leave the road center far enough from defendant's fence to make it no encroachment. The survey in 1880 was made with the concurrence and under the oversight of the town commissioner of highways, who recognized its correctness, and found that the encroachments were on the other side of the road. In our opinion, the testimony concerning the correct location is clearly in defendant's favor, and the decree should be reversed and the bill dismissed on the merits. But the case calls properly for remark on its methods. The highway law now in force was passed in 1881, and supplied methods for dealing with encroachments which had been previously wanting or very imperfect. The former laws made no provision for dealing with encroachments except where the highway had been duly laid out according to law. Highways by user, or highways in any way lacking complete regularity, were left without statutory redress for encroachments. See Parker v. People, 22 Mich. 93; Roberts v. Commissioners, 25 Id. 23. The proceedings in case of regularly laid out highways consisted of a species of inquest not in the ordinary course of law; and it was held by this Court that titles and boundaries actually disputed could not be subjected to any remedy which would deprive a party of his right to a trial after the course of the common law. Sheldon Kalamazoo, 24 Mich. 383; Roberts v. Commissioners, 25 Id. 23; Campau v. Button, 33 Id. 525; Gregory v. Stanton, 40 Id. 271; Willson v. Gifford, 42 Id. 454 (4 N. W. Rep. 170). The result was, that although when there was no honest dispute about the highway or its lines the commissioner could by inquest be authorized to remove encroachments, yet where there was any dispute he could not do so until the right had been legally settled, while in highways by user he could not interfere at all. This showed the necessity of equitable interference in the absence of any adequate legal remedy, and especially where, after the right was settled, no specific remedy existed for removing the nuisance. |