State v. Duff
Decision Date | 03 June 1891 |
Parties | STATE v. DUFF. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.D. S. Tullar, Dist. Atty., for the State.
Ryan & Merton, for respondent.
This is an action brought to recover the penalty given by sections 1330, 1331, Rev. St., for the failure to remove a fence, which, it is alleged, is an encroachment upon the public highway. Notice was given by the supervisors of the town requiring the defendant to remove the fence, which he refused to do. His defense is that there is no highway where the fence stands; consequently that there is no encroachment. Is he right in this contention? It appears that in 1848 the territorial legislature incorporated the Milwaukee & Janesville Plank-Road Company with authority to locate and construct a plank-road from some eligible point in the city of Milwaukee by the way of Big Bend, on Fox river, to some point in the town or village of Janesville. Terr. Laws 1848, p. 88. Under this statute a plankroad was located and built over the premises in question, but in 1855 the plank-road company abandoned that portion of its road west of Fox river, including the locus in quo. A few years afterwards the defendant built his fence within what is claimed to be the limits of the highway, and in 1888 notice was given him to remove the fence, which, it is insisted, constitutes an encroachment at two different points in the highway. The trial court, on the close of the plaintiff's case, granted a nonsuit, doubtless on the ground that it did not appear that there was any public highway where the fence stood. This view, we think, was erroneous. Chapter 253, Laws 1863, in substance provides that, where a plank-road or any portion thereof shall have been abandoned by the owner or owners thereof neglecting to make repairs and collect tolls upon the same for the period of 60 days, such road or any portion thereof so abandoned shall be deemed a public highway, and the supervisors of any town in which such road or any portion thereof may be situated shall, immediately after such abandonment as aforesaid, cause the same to be put and kept in repair. It does not very clearly appear what control the town authorities exercised over the particular piece of road after its abandonment by the plank-road company, but we infer from the record or the facts stated in it that it continued to be used by the public as a highway. At all events, it is clear to our minds that the effect of the law of 1863 was to make the abandoned portion a public highway, and impose upon the town in...
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