Collins v. State

• Decision Date: 01 February 1916
• Citation: 156 N.W. 133,162 Wis. 349
• Parties: COLLINS v. STATE.
• Court: Wisconsin Supreme Court

162 Wis. 349

156 N.W. 133

COLLINS

v.STATE.

Supreme Court of Wisconsin.

Feb. 1, 1916.

Appeal from Circuit Court, St. Croix County; George Thompson, Judge.

D. J. Collins was convicted of having obstructed a public highway willfully and maliciously, and he appeals. Affirmed.

The plaintiff in error, hereinafter called the defendant, is charged in the information with obstructing a public highway by willfully and maliciously placing and building a fence within and along the traveled track in violation of section 1326, Stats. 1915.

The defendant together with his brother is the owner of the S. W. 1/4 of section 36, range 19, in the town of Troy, in St. Croix county. A highway ran along the north side of this tract of land which had been used by the public for a period of 40 years or more. When defendant purchased the land, his grantors told him that one Simpson, owner of land on the other side of the highway, was encroaching on the north side of the traveled track, and that no part of the grade along the north side of this land was on the S. W. 1/4 of section 36, the land which they sold to him. The defendant, being under the impression that the highway was encroaching on his land, consulted an attorney in regard to building a fence along his north line. The attorney advised him that he might build a fence along his north line, and that, if the town officers disputed his right to put a fence there, they would probably tear it down, and he could then bring an action in trespass and try out the question as to the location of the highway. Defendant, relying on this advice, built a fence in and along the highway. Part of this fence was in the traveled track of the highway. Mr. Simpson, his neighbor, who was then the pathmaster, told defendant not to build a fence there until he obtained permission from the town chairman, but defendant replied “he didn't care.” Simpson then called up the chairman, and again spoke to the defendant and delivered the chairman's message to the effect that Collins must not build the fence, to which Collins answered, “I don't care; going to build the fence, anyhow.” Simpson again told him he better not build the fence until the line was established. Collins then said, “I will fence, anyhow,” and did erect the fence.

The action was commenced in justice court and the defendant answered and deposited a bond conditioned on an appeal to the circuit court. The justice court found the bond sufficient. Defendant moved for a discharge on the ground that the complaint did not state a crime or an offense under the statutes, but this motion was overruled. The trial proceeded in justice court, and the defendant, offering no testimony, was adjudged guilty of the offense. Upon appeal to the circuit court the defendant was convicted and sentenced to pay a fine of $25 and the costs of the prosecution, amounting to $148, and in default of the payment of the fine and costs he be confined to the common jail of St. Croix county, Wis., until such fine and costs are paid, not to exceed four months. From such judgment, this appeal is taken.White & Skogmo, of River Falls, McNally & Doar, of New Richmond, and F. M. White, of River Falls, for appellant.

W. C. Owen, Atty. Gen., J. E. Messerschmidt, Asst. Atty. Gen., and N. O. Varnum, of Hudson, for the State.

SIEBECKER, J. (after stating the facts as above).

[1] Section 1326, Stats., prior to its amendment by chapter 109, Laws 1909, provided for the punishment of...