73 Wis. 664 | Wis. | 1889
For the purpose of this appeal it is assumed that the locus in quo where the defendant’s fence stood was a public highway, either by being originally legally laid, or had become so by user. On this assumption, how does the case stand? The action is brought under sec. 1326, R. S., to recover the penalty for obstructing a highway. If the fence in question really was in the highway as claimed by the plaintiff, it was an encroachment as
In this case, it appears, the supervisors made an order under sec. 1330, declaring that the fence encroached upon the highway, and requiring the defendant to remove it. A copy of this order was served upon the defendant, who denied, in writing, within thirty days, the encroachment, as provided in secs. 1331 and 1332. This denial was addressed to the supervisors, and served upon one of them. The supervisors should then have taken steps which the statute points out to determine whether an encroachment had been made. This proceeding is made very plain by the subsequent provisions, which afford an ample remedy for removing such an encroachment. But, instead of pursuing this remedy, this action was brought to recover the pebalty given for obstructing a highway. The court below held upon the evidence that there never had been a public highway where the fence stood, and gave judgment for the defendant. We have assumed that the locus in quo was a highway, but hold that the fence does not constitute an obstruction within the meaning of the statute. On that ground the judgment of the circuit court is affirmed.
By the Court.— Judgment affirmed.