Williams v. Fink

18 Wis. 265 | Wis. | 1864

By the Court,

Cole, J.

Assuming that the place where the alleged trespass was committed was a legal highway, and that the fence was a clear encroachment upon it, still, upon the facts disclosed in the evidence, was the appellant justified in removing it ? If this question is answered in tbe negative, then it is obvious that the-other exceptions taken by the counsel for the appellant become immaterial and need not be noticed.

The appellant justifies the removal of the fence upon the ground that it stood in the highway, obstructing the travel and interfering with the use of the road by the public. And he relies upon the principle of law, laid down and sanctioned by many authorities, that when a highway is unlawfully obstructed, any person who wants to use it may remove the obstruction, and may even enter upon the land of the party erecting or continuing the obstruction, for the purpose of removing it, doing as little damage as possible. The difficulty, however, is to bring the case within the operation of this rule of law. The evidence abundantly shows that the appellant himself blocked up the highway at that place with his threshing machine, and thus created the necessity for removing the fence in order to accommodate the traveling community. It may well be that the public had a right to the entire width of the road, and a right of passage in the road to its utmost limit, unobstructed by any obstacle whatever. But we do not think the appellant, after having himself actually blocked up almost the entire portion of the road at that place not enclosed, had the right to remove the fence in order to furnish a passage for the public along that portion which had thus been enclosed. It seems that the use of the highway was not rendered entirely inconvenient or impossible by the encroachment of the fence. The public could and did pass along it notwithstanding this obstruction. And although a traveller passing along the highway might have the right to use any part which might be convenient or necessary for him, and even remove the fence because it hindered the travel and rendered the road less commodious, yet we do not think a person who had obstructed what space there was left, — had created the very necessity for removing the fence — could himself remove it because it was a common nuisance. We know of no principle of law which justifies any such, conduct. Here there was almost a total obstruction of the highway generally used, by placing a threshing machine there, and this rendered it necessary for the appellant to remove the fence in order to avoid the consequences of his own wrongful act. Under these circumstances we are clear in the opinion that his acts were unlawful, assuming as we do that the fence stood in the highway. If we are right in this view of the case, then it is manifest that the other questions discussed are immaterial.

The judgment of the circuit court is therefore affirmed.