State v. Reesa

• Decision Date: 11 December 1883
• Citation: 17 N.W. 873,59 Wis. 106
• Parties: STATE v. REESA.
• Court: Wisconsin Supreme Court

59 Wis. 106

17 N.W. 873

STATE

v.REESA.

Supreme Court of Wisconsin.

Filed December 11, 1883.

Appeal from circuit court, Walworth county.E. H. Sprague, for respondent, the State of Wisconsin.

E. Merton and Fish & Dodge for appellant, Bernard Reesa.

ORTON J.

This is an action for the penalty fixed by statute (section 1326, Rev. St.) for obstructing a highway, brought July 11, 1881. The facts were that for over 30 years a highway had been used by the public on the east and west section line, near this place, but at this particular point diverged from the section line in order to avoid a slough or marsh, and when the highway passed around the slough it returned again to and upon the section line. In 1873 there was a petition to discontinue that part of this highway which passed around the slough and lay it on the section line, the line of the main highway, and an order of the supervisors of the town was made for the “laying out of a highway four rods wide,” etc., between these points of divergencefrom the section line, without any order discontinuing the old highway around the slough. Since that time the new or altered road has been improved and used to some extent, as also the old line in wet weather. The defendant shut up the old line just before this suit was brought, which ran through his land, and obstructed the travel thereon, as being at that time no highway.

The only question upon these facts is whether the old circuitous line around the slough has been lawfully discontinued as a highway by the change of the main highway in 1873 to the section line. The petition for this change was lost and its contents testified to from memory, but the language of the witness is “to discontinue” the road around the slough. The language of the order is “to lay out a highway on the section line.” It is contended on behalf of the state that the new road in 1873 on the section line was independent of the old line, and was regularly laid out as a new road, and that it did not per se discontinue the old line around the slough. On behalf of the appellant it is contended that this was in substance and effect a change or alteration of the old line, and, proprio vigore, discontinued the old line. The question is therefore one of construction. The language of the lost petition and the order differs, and materially, upon this question. But words do not make things or subjects, but attempt to express them only, and when the evidence shows precisely what the thing or matter really is, then mere words should not be accepted as changing such thing or matter by the mere force of definitions. On the face of the proceedings we cannot think that it was the design of the supervisors of the town to maintain two highways at this place, one around the slough and the other on the section line. It is the first impression of reason and the first suggestion of...