99 Mich. 47 | Mich. | 1894
This action was brought under 3 How. Stat.
We think, under the facts, that the court was not in error in directing the verdict. The statute provides that who ever shall willfully obstruct any highway, or fill up or place any obstructions in any ditch constructed for draining the water from any highway, etc., shall forfeit, for every such offense, a sum not exceeding $25. The ditch filled up was a large one, and it is evident that it was constructed and used for the purpose of draining the highway. Opposite the defendant’s land was a sag hole in the road, and, with the ditch filled, the waters could not be drained off. The filling was done by defendant by placing in logs and stumps, and plowing earth over them. When asked by the highway commissioner to remove the obstructions, he positively refused to do so. Whether this ditch or drain was legally and properly laid out in the first instance could not be pleaded as a defense to the action. It was used for the draining of water from the highway, and it is conceded that the highway was a public one.
But the statute only fixes the maximum amount of the penalty, — that is, a penalty not exceeding $25, — and does not prescribe whether it is to be fixed by the court or the jury. In such 'cases, either party is entitled to a jury trial, and the amount of the penalty was for their consideration. The plaintiff, under the proofs, was entitled to a verdict for at least six cents, but the court had no power to say how much greater the amount should be. That question was for the” jury. 18 Amer. & Eng. Enc. Law, p. 281; McDaniel v. Gas-Light Co., 79 Ga. 58.
There has been filed, however, in this Court, a writing waiving the recovery of the amount of - the penalty above six cents, and remitting all over that amount. The judgment of the court below will' be modified to that extent, fixing the damages at six cents, and with this modification will be affirmed. This is in accordance with our ruling in Bresnahan v. Nugent, 97 Mich. 359. No costs will be awarded to either party in this Court.