This action was originally commenced in justice’s court by Schermerhorn for the unlawful obstruction of the public highway described, by Baier, December 5,1894, whereby he was obliged to turn back with his team, to his damage. Baier answered by way of a general denial, and further specifically denied that the locus in quo ever was a public highway or any highway whatever, and alleged that at the time mentioned he was the owner and lawfully in possession of said lands and premises, and that at the time mentioned Schermerhorn was wrongfully and unlawfully trespassing upon his premises. TJpon such plea of title the cause was, under the statute, duly certified to the circuit court, where it was tried, and at the close of the* trial the jury returned a special verdict to the effect that the road in question had been used and worked as a public highway through and across the land of Baier continuously for the period of ten years immediately prior to December 5, 1894, and was laid out by the supervisors, and the order laying out the same was recorded November 5, 1860; that that part of the road at the gate in question was thereafter opened and worked for the term of three years; that the road at the gate in question was opened, traveled, or worked within four
"We cannot dismiss this writ of error merely because Baier had another remedy, by appeal and certificate of the trial judge, under ch. 215, Laws of 1895. Counsel gives no’ other reason. The two remedies are distinct from each other. Bumbalek v. Peehl, 95 Wis. 127. As there indicated, unless the common law or some statute at the time of the adoption of the constitution precluded such writ in a case like this, the aggrieved party is entitled to the writ as a matter of right. Id. Const, art. I, sec. 21. Counsel has cited no authority to that effect, and, with the limited time at our command, we have found none that is satisfactory.
The particular ants of Baier, complained of, consisted in maintaining a fence, with a gate in it, across the alleged highway, on his own land, and also in placing a log in such highway, on his own land, near the same place. If there was in fact a-public highway where such obstructions were located, then Sehermerhorn, or any other traveler upon such highway, had the legal right to abate or remove the same in
The rule stated is in strict harmonj'- with the repeated rulings of this court. Zettel v. West Bend, 79 Wis. 316; Evans v. C., St. P., M. & O. R. Co. 86 Wis. 603; Mahler v. Brumder, 92 Wis. 483. In the first of these cases it was held that “ to sustain a private action for injuries caused by a public nuisance, the injuries done to the plaintiff must be different, not merely in degree, but also in kind, from those done to the public.” True, .there is a finding of the jury to the effect that Sehermerhorn sustained special damage, “ differing in character from that .sustained by the public in general, by reason of the” maintenance of the gate. But it is manifest from the undisputed evidence that such special damage so found is too remote to be the foundation of an action. It is like the Ohio case [Farrelly v. Cincinnati, 2 Disney, 516] mentioned in Zettelv. West Bend, wherein it was held that: “A traveler who is forced to abandon his nearest route by reason of the nonrepair of the street, and seeks his destination by a longer and more circuitous road, whereby he suffers injury in his business, does not sustain such a special damage as to entitle him to an action .against the party charged with the duty of keeping the way in repair. So, also, in case of an omnibus line which has
It is undisputed that the fence, with the gate in question,, had been maintained from twelve to twenty years. Such, maintenance during that time was a continued assertion that, the roadway mentioned was not a public highway, but at most a private way. If it was desirable that the same should5 be maintained as a public highway, then it was the duty of the public officials to keep the same free from such obstructions ; but it was not for Schenmrhorn, as a private individual,, to vicariously assume the performance of such duty.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.