73 Wis. 598 | Wis. | 1889
This is an action brought by the state to recover the penalty prescribed bjr sec. 1326, R. S. 1818, for obstructing a public highway. The action was tried in the ■court below by the court, a jury trial having been waived ■'by the parties. The only controversy in the case was upon the question whether the locus was a public highway, the
After hearing the evidence the learned circuit judge made and filed the following findings of fact and conclusions of law: “That the highway described in the complaint in this action was duly laid out by the supervisors of the town of "Willow Springs in La Fayette county, Wisconsin, on the lltli day of March, 1882. That said highway was lawfully opened by said supervisors in the month of September, 1882, and highway labor performed thereon, under the direction of the overseer of highways, in each year thereafter. That the defendant removed his fences from such highway, or caused the same to be removed in the year. That said highway was worked, used and traveled as such, from the time it was opened as aforesaid until the month of April, 1885, when it was obstructed and closed by the defendant, who built a fence across the same. That the defendant, from the time said highway was opened as aforesaid, treated the same as a public highway by removing his fences therefrom, doing highway labor thereon under the direction of the overseer of highways, and by using the same as a public highway up to the time he obstructed it as aforesaid. As conclusions of law, the court finds that there was a lawful highway existing at the place mentioned in the complaint in this action, in the month of April, 1885, and that the defendant at that time unlawfully obstructed the same, and is liable tó the penalty prescribed in sec. 1321, ch. 52, E. S., and that the plaintiff is entitled to the judgment demanded in the complaint to the amount of $1, with costs.”
The defendant duly excepted to each of the findings of fact, and to the conclusions of law. The court entered judgment in favor of the state for the penalty and costs. The defendant appealed to this court, and alleges as error that the evidence in the case does not sustain the finding of the learned circuit judge, “ that the highway described in
After a careful reading of all the evidence in the case, we are forced to the conclusion that there is clearly a failure of evidence to support this finding. The only evidence introduced on the part of the state to show that the alleged highway was ever laid out by the supervisors of said town, was a certified copy of an order made by said supervisors on the 11th day of March, 1882, which purports on its face to be an order laying out a highway over the place where the obstruction complained of was placed by the defendant; a survey of said highway; an award of damages to the owners; and a petition for the highway in due form. The name of the defendant appeared on this petition, written in pencil. There was also some evidence given tending to show that the alleged highway had been opened for public use .and had been used- as such previous to the commencement of this action, and that some highway work had been performed on portions thereof before this action w'as commenced. The action was commenced in April, 1885, and according to the findings of the court the road was not lawfully opened or any highway labor performed thereon until the month of September, 1882.
Upon the evidence introduced by the state there was a legal presumption that the supervisors had regularly laid out a highway over the locus in quo. This presumption is, however, a mere presumption of fact, declared to be such by statute. Sec. 1298, R. S. Without the aid of this section it could not be contended that the proofs of the state had established such fact. The only question for the consideration of the court was whether this presumption of fact had been overcome by the evidence of the defendant-. The evidence of the defendant which is clearly uncontra-dicted shows that although the name of the defendant ap
But it is urged that the defendant signed the petition for the highway, and so was not entitled to notice of the meeting of the supervisors. Admitting this to be true, it would not dispense with notice to the public and other owners, and he may avail himself of such want of notice to other parties to invalidate the proceedings. See Roehrborn v. Schmidt, supra. There is, however, no evidence in the case that the defendant ever signed the petition. There was no proof that the signature was his, but the contrary. There was no presumption raised against the defendant that he authorized the signature. In order to bind him by a signature admitted not to be in his handwriting, the state
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to said court to render judgment for the defendant.
