State v. Logue

• Decision Date: 12 March 1889
• Citation: 41 N.W. 1061,73 Wis. 598
• Parties: STATE v. LOGUE.
• Court: Wisconsin Supreme Court

73 Wis. 598

41 N.W. 1061

STATE

v.LOGUE.

Supreme Court of Wisconsin.

March 12, 1889.

Appeal from circuit court, La Fayette county; GEORGE CLEMENTSON, Judge.

Action against Patrick Logue to recover the statutory penalty for obstructing a highway. Judgment for the state, and defendant appeals.Orton & Osborne, for appellant.

D. S. Rose, for respondent.

TAYLOR, J.

This is an action brought by the state to recover the penalty prescribed by section 1326, Rev. St. 1878, for obstructing a public highway. The action was tried in the court below by the court; a jury trial having been waived by the parties. The only controversy in the case was upon the question whether the locus was a public highway; the defendant by his answer having denied the existence of any highway at the place of the alleged obstruction. After hearing the evidence, the learned circuit judge made and filed the following findings of fact and conclusions of law: “That the highway described in the complaint in this action was duly laid out by the supervisors of the town of Willow Springs, in La Fayette county, Wis., on the 11th day of March, 1882; that said highway was lawfully opened by said supervisors in the month of September, 1882, and highway labor performed thereon, under the direction of the overseer of highways, in each year thereafter; that the defendant removed his fences from such highway, or caused the same to be removed, in the year; that said highway was worked, used, and traveled as such, from the time it was opened, as aforesaid, until the month of April, 1885, when it was obstructed and closed by the defendant, who built a fence across the same; that the defendant from the time said highway was opened, as aforesaid, treated the same as a public highway, by removing his fences therefrom, doing highway labor thereon under the direction of the overseer of highways, and by using the same as a public highway up to the time he obstructed it, as aforesaid. As conclusions of law, the court finds that there was a lawful highway existing at the place mentioned in the complaint in this action in the month of April, 1882, and that the defendant at that time unlawfully obstructed the same, and is liable to the penalty prescribed in section 1327 of chapter 52 of the Revised Statutes; and that the plaintiff is entitled to the judgment demanded in the complaint to the amount of $1, with costs.” The defendant duly excepted to each of the findings of fact, and to the conclusions of law. The court entered judgment in favor of the state for the penalty and costs. The defendant appealed to this court, and alleges as error that the evidence in the case does not sustain the finding of the learned circuit judge, “that the highway described in the complaint was duly laid out by the supervisors of the town of Willow Springs, in La Fayette county, Wis., on the 11th day of March, 1882.”

After a careful reading of all the evidence in the case, we are forced to the conclusion that there is clearly a failure of evidence to support this finding. The only evidence introduced on the part of the state to show that the alleged highway was ever laid out by the supervisors of said town was a certified copy of an order made by said supervisors on the 11th day of March, 1882, which purports on its face to be an order laying out a highway over the place where the obstruction complained of was placed by the defendant; a survey of said highway; an award of damages to the owners; and a petition for the highway in due form. The name of the defendant appeared on this petition, written in pencil. There was also some evidence given tending to show that the alleged highway had been opened for public use, and had been used as such previous to the commencement of this action, and that some highway work had been performed on portions thereof before this action was commenced. The action was commenced in April, 1885, and, according to the findings of the court, the road...