Neale v. State

• Decision Date: 09 March 1909
• Parties: NEALE v. STATE.
• Court: Wisconsin Supreme Court

138 Wis. 484

120 N.W. 345

NEALE

v.STATE.

Supreme Court of Wisconsin.

March 9, 1909.

Error to Circuit Court, Marquette County; Chester A. Fowler, Judge.

Action by the State against William Neale for a penalty judgment for plaintiff. Defendant brings error. Reversed and remanded for new trial.

This action was originally brought in justice court to recover a penalty for which it is claimed the plaintiff in error (hereinafter called the defendant) became liable by reason of violating the provisions of section 1326, St. 1898. The alleged violation consisted in placing fence posts in a certain highway in Marquette county in such a manner as to constitute an obstruction therein. The answer alleged title in the defendant by deeds of conveyance, and also because of adverse possession for more than 20 years, and averred that a determination of the controversy could not be had without the title to the lands referred to being put in issue; the defendant claiming to be the lawful owner thereof and to be entitled to the possession of the same. The proper undertaking was filed, and the case was removed to the circuit court, and a trial in that court resulted in a verdict for the plaintiff, in which the amount of the forfeiture to be paid by the defendant was assessed at the sum of $1. The defendant prosecutes this writ of error from the judgment entered upon such verdict, and assigns as error (1) the erroneous admission of evidence on the part of the state against the objection and exception of the defendant; (2) the erroneous rejection of evidence offered by the defendant upon the objection of the state; (3) refusal of the court to grant a nonsuit; (4) refusal of the court to grant defendant's motion for a directed verdict; (5) refusal to instruct the jury as requested by defendant; (6) error in the instructions given to the jury.Daniel H. Grady, for plaintiff in error.

D. W. McNamara, for defendant in error.

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

The errors assigned on rulings on evidence are not substantial and need not be discussed.

The third and fourth errors relate to the refusal of the court to grant a nonsuit and to direct a verdict. It is claimed that these motions should have been granted because the evidence offered by the state, at best, showed that the post nearest the traveled track, as the road was used when the posts were put in the ground, was three feet distant from such track, and constituted a mere encroachment on the highway, and not an obstruction of it. There is evidence tending to show that the post was nearer than three feet to the traveled track, but we accept counsel's argument as sound that inasmuch as the witnesses for defendant on this point testified from actual measurement, while those for the state testified somewhat indefinitely and from mere recollection, the evidence of the former should be accepted as true. Counsel urges that in Konkel v. Pella, 122 Wis. 143, 99 N. W. 453, this court held as a matter of law that a fence built three feet from the traveled track of a highway constituted an encroachment within the meaning of section 1330, St. 1898, and not an obstruction within the meaning of section 1326. In this case the court in its opinion said that the fence in question was not an obstruction, because it was conceded that at all points “the fence was outside of the limits of any legal highway, except as legality might have been acquired by travel over the line indicated by the wheel tracks in question for a period of more than 20 years,” and, further, that “the evidence is overwhelming that travel even upon the lines of the wheel tracks above referred to was easy and unobstructed.” The court did not decide that in no case and under no circumstances could an obstacle within three feet of the traveled track constitute an obstruction. If this were so, the parties owning land on either side of a public highway created by user might place their fences three feet from the traveled track and escape prosecution for obstructing the road, although two teams could not pass therein. We do not think that, where a highway by user is established, the wheel tracks and the land included between them necessarily designate the limits thereof. The correct view is taken in Bartlett v. Beardmore, 77 Wis. 356, 363, 46 N. W. 494, 496, where it is said: “Most country roads have a narrow beaten track, but it does not follow that the use is confined to such path. Teams must pass each other, and for that purpose must necessarily depart from the main traveled track. So, when such track is muddy, public convenience requires departure from such track. We cannot hold that the public can acquire no legal right to such sides of the main traveled track by such ordinary user.” Under the testimony, it was a fair question for the jury to say whether the posts in controversy constituted an obstruction or not. Jones v. Tobin, 135 Wis. 286, 115 N. W. 807. It is argued that the post nearest the traveled track was set between two large stones that had been placed there at some prior time, and that, if there was an obstruction, it was caused by the stones rather than by the post. The placing of one obstruction in the road would hardly justify the placing of another one at the same point; and the stones might not interfere in the least with the passage of a load of hay, while a post five or six feet high might.

Error is assigned because the court refused to give the following instruction: “You are further instructed that, if the defendant or his predecessors in title openly, notoriously, adversely, and continuously for a period of 20 years immediately preceding the commencement of this action occupied up to the line marked by the placing of the posts in question, then he had a right to place the said posts at the point indicated, and you should return a verdict in his favor.” Without passing upon the correctness of this instruction as an abstract question of law, we fail to see how it was applicable to the facts proved on the trial. The defendant had the paper title to his land, as we understand the record. At least there was no controversy on that point. The public, if it had any right in the land where the posts were set, acquired its easement by user, by grant, by dedication, or by condemnation. It claimed right by user, although some circumstances were shown from which dedication might possibly be inferred as a matter of fact. In order that the instruction should be germane, the evidence should show that the public at one time had acquired an easement by prescription or otherwise, and that, after such right became vested in the public, the land was adversely occupied by the defendant and his predecessors for 20 years. We have been unable to find any such evidence. The state contended that fences were formerly maintained on the line now occupied by defendant's fence. The defendant claims that the fence up to about nine years ago was on the line of the posts, which it is now asserted constitute obstructions in the road. If the state is right in its claim, then there...