
    Charles Knorr and Charles Steffens v. Arthur L. Canfield, Circuit Judge of Macomb County.
    
      Jurisdiction — Costs—Highways.
    1. The proviso in How. Stat. § 6815, that justices of the peace may have jurisdiction in actions for damages resulting from obstructions to highways, confers, at best, only a concurrent jurisdiction with the circuit court.
    
      2. Where, in a suit in the circuit court for damages for obstructing a highway, the only matter in issue by the proofs is whether or not the particular spot where the obstruction was placed was in the public highway as constituted by user, which question is determined in favor of the plaintiff, he is entitled to costs under How. Stat. § 8964, although the judgment is less than $100.
    
      Mandamus.
    
    Submitted November 8, 1889.
    Decided November 15, 1889.
    Relators apply for mandamos to compel respondent to vacate a judgment for costs in favor of plaintiff in an action for damages for obstructing a highway, where the judgment was less than $100. The facts are stated in the opinion.
    
      Edgar Weeks (Eldredge & Spier, of counsel), for relators.
    
      Lungershausen & Erskine, for respondent.
   Morse, J.

The only question here is one of costs.

One William Walvin sued the relators in the circuit court of Macomb county, declaring in trespass on the case, and alleging, in substance, that he was injured by the negligence of the relators in incumbering a certain public highway with saw-logs, bolts, staves, and other materials, into and against which his horse ran, throwing him out of his cart. The highway was described as the—

Town-line road between the townships of Erin and Clinton, in said county of Macomb, in the vicinity of the village of Eraser, in said township of Erin.”

And it was alleged that these incumbrances encroached upon the highway, and were wrongfully placed therein by the relators, the defendants in said Buit. The defendants pleaded the general issue.

In his return to the order 'to show cause the circuit judge says that the highway was sought to be established by the plaintiff by testimony tending to show that at the point where the logs were piled there was a highway by user and common reputation, and the defendants in rebuttal thereof introduced evidence tending to show that at this point no^ right of way or easement existed in favor of the plaintiff or the public, but that the same had been used by the defendants and their grantors for over 20 years for the piling of logs. It is admitted that there was no dispute upon the trial as to the location of the logs, the point where they were piled being agreed upon. The dispute was whether this point was within or with, out the highway. The jury found for the plaintiff, and adjudged his damages at $35. Both parties ’claimed costs. The circuit judge gave them to plaintiff. We are asked to compel by mandamus a vacation of this judgment as to costs, and to issue a further command that judgment in this regard be entered in favor of the defendants.

The issue of the writ is claimed for the reason that the' verdict of the jury was for less than $100. It is contended that the action was clearly within the exclusive jurisdiction of a justice of the peace, under sections 6814, 6815, How. Stat. Section 6814 provides that justices of the peace shall have exclusive jurisdiction of all civil cases wherein the debt or damages do not exceed $100, except as' provided in section 6815, which reads as follows:

“No justice of the peace shall have cognizance of real actions, actions for a disturbance of a right of way or other easement. * * * Nor where the title to real estate shall come in question, except as hereinafter mentioned: Provided, That justices of the peace may have jurisdiction in actions for damages resulting from obstructions to highways, subject to the restrictions prescribed in section one (§ 6814) of this chapter.”

In our opinion this proviso in section 6815 confers, at best, only a concurrent jurisdiction with the circuit court upon justices of the peace in actions for damages resulting from obstructions to highways, which jurisdiction such justices may take.

Under section 8964, How. Stat., the plaintiff is entitled to costs when the title to lands or right of way or to any easement in lands shall have been put in issue by the pleadings, or shall have come in question on the trial of the cause. It is clear in the present case that the only matter in issue by the proofs was whether or not the particular place where the logs were piled was in the public highway as constituted by user, and this was determined, not by the location of the logs, but as to where the highway was located and established. The question submitted to the jury, in effect, was:

“Did the highway, as used and traveled by the public for a sufficient number of years to constitute the land thus used a highway by user, take in the spot where these logs were piled, or was such place outside the limits of such highway?”

This question was answered by the jury in their verdict. They found the logs in the highway.

The writ will be denied, with costs.

The other Justices concurred.  