State v. Leaver

• Decision Date: 03 March 1885
• Citation: 62 Wis. 387,22 N.W. 576
• Parties: STATE v. LEAVER.
• Court: Wisconsin Supreme Court

62 Wis. 387

22 N.W. 576

STATE

v.LEAVER.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeal from circuit court, Jefferson county.

This action was brought under Rev. St. p. 412, § 1326, to recover the penalty therein prescribed for obstructing Monroe street, in the village of Waterloo. The obstruction complained of is alleged to be a barn erected by the defendant in 1882, within the limits of the east side of the street. The action was brought by direction of the president of that village, and a judgment against the defendant for $25 is demanded in the complaint. The answer is quite lengthy, and the allegations thereof need not be stated. It is sufficient to say that all the questions considered in the opinion are raised by it.

In 1857 the lands included in the village of Waterloo were platted into blocks and lots by the respective owners thereof. The plat was duly executed, certified, and recorded. One Henry Drew was then the owner of the locus in quo alleged to have been obstructed by the defendant, and joined in the execution of the plat. Monroe street is designated on this plat, extending north and south, and crossing Waterloo creek, which runs through the lands thus platted. That street intersects Madison street, extending east and west on the north side of the creek. The point of intersection is the north-west corner of section 8, township 8 N., range 13 E. Hence the center lines of Monroe and Madison streets are section lines.

The defendant is the owner of a lot in the north-west corner of section 8, 48 feet wide east and west, and 130 feet in length north and south. He derives his title through mesne conveyances by Drew and his grantees, in which the lot is described by metes and bounds. The first conveyance in this line was executed by Drew in 1864. He obtained title thereto in 1859. The north-west block in section 8 is designated in the plat as block No. 16, and it was not subdivided into lots. It was, however, in 1869 so subdivided by one Mead, who owned a portion of it, and was president of the village by direction of the village board. Mead's plat was imperfectly executed. Both the above-named streets were designated on this plat the same as on the original plat. A great number of conveyances, executed by the proprietors of the original plat and their grantees, in which lots and blocks platted therein are described according to the plat, were introduced in evidence. Also many ordinances and resolutions of the board of trustees of Waterloo, showing a general recognition and acceptance of the streets and grounds dedicated by the plat to public use. Monroe street is mentioned in some of these ordinances.

As early as 1860, probably earlier, a building was erected on the lot now owned by the defendant, by the then owner of such lot. A portion of the building stood within the platted limits of both Monroe and Madison streets. A few years later it was moved 15 or 20 feet west, towards the center of Monroe street. About 1873 the village authorities required the owner to remove such building from the limits of Madison street. He accordingly moved it due south a sufficient distance to clear that street, and placed it upon a substantial stone foundation, where it now stands. The village paid a portion of the expense of such removal. It will thus be seen that the building still occupies a portion of Monroe street as platted. By direction of the village board a sidewalk was constructed in front of the building, on Madison street, within the limits of Monroe street, and the cost thereof was charged to the lot of defendant. For several years before 1882 the village board leased, and appropriated money to pay the rent of, a part of Monroe street between defendant's lot and the creek, and used the same for the purposes of a lock-up and a pound. In 1868 the village board directed that the portion of Monroe street south of the creek be cleared of obstructions. In 1881 a notice, signed by the president and trustees of the village, was served upon the defendant, requiring him to remove his buildings out of Monroe street. January 9, 1882, such board passed an ordinance declaring all obstructions in Monroe street public nuisances, and requiring defendant to remove his buildings therefrom. Another ordinance was substituted for this on March 7, 1882, in which Monroe street, from Madison street south, was declared open for public use, and it required any person maintaining an obstruction therein to remove the same in 10 days after service of a notice upon him to that effect.

In obedience to the foregoing proceedings by the board, all obstructions were removed from that part of Monroe street north of the river (and there were many of them) by the respective owners of abutting lots, except those maintained by the defendant. He refused to obey the mandate of the board. In March, 1882, the defendant commenced erecting a barn south of his store and within the limits of the street. The president of the village, in his official capacity, notified him to desist from placing such obstruction in the street, but the defendant proceeded with the erection of the building. This is the obstruction complained of.

There was much testimony introduced on the trial upon other propositions of fact not contained in the foregoing statement. Such of it as is deemed material is referred to in the opinion. At the close of the testimony the circuit judge directed the jury to return the following verdict, which they accordingly did: “We, the jury, find the defendant guilty of obstructing the highway as charged in the complaint, and that he is indebted to the plaintiff in the sum of $25; and we find for the plaintiff that it is entitled to recover the penalty of $25, as provided in section 1326 of the Revised Statutes.” The exception thereto is as follows: “The defendant then and there duly excepted to the charge of the court, and to the order directing the jury to find said verdict as above set forth, and to the whole and every part of said order and direction.” A motion for a new trial was denied, and judgment entered for the plaintiff pursuant to the verdict. The defendant appeals from the judgment.

I. W. & G. W. Bird, for respondent.

Knight & Hayes, for appellant.

LYON, J.

1. The first question is, do the provisions of section 1326, Rev. St., under which this action was brought, apply to the streets within the village of Waterloo? The section reads as follows: “Whoever shall obstruct any highway, or fill up or place any obstruction in any ditch constructed for draining the water from any highway, shall forfeit, for every such offense, a sum not exceeding twenty-five dollars, and the overseer of the proper district shall cause such obstruction immediately to be removed.” An argument that those provisions are not so applicable is drawn from the last sentence of the section. It is said that there is no overseer of highways in that village. But the village is divided into highway districts, to each of which a street commissioner is assigned, who performs the functions of an overseer of highways in a town. P. & L. Laws 1867, c. 114, § 32. There is no difficulty, therefore, in the way of executing the mandate of section 1326 in the village of Waterloo. Section 1347, Rev. St., which is in the chapter containing section 1326, is conclusive of the question. It is there enacted that “the provisions of this chapter shall extend to all parts of the state, except where special provisions inconsistent therewith have been or shall be made by law in relation to particular counties, towns, cities, or villages.” We find no special provision on the subject in the charter of Waterloo. The question first above stated must be answered in the affirmative.

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