State v. Blonien , 36 Wis. 303 ( 1874 )

Cole, J.

This was an action commenced before a justice to recover the statutory penalty for willfully obstructing a highway. The defendant pleaded the general issue, and on the trial claimed the right to show that the locus in quo was not a highway, but had been discontinued by the proper authorities prior to the time of the alleged obstruction. The testimony was objected to, and excluded by the justice. And the only question presented on the record is, whether, under the circumstances, the defendant was entitled to malie that proof.

In a number of cases which have come before this court, it has been in effect decided, that unless the defendant in his answer denies the existence of the highway, averring the title and possession to be in himself, and gives the bond required by the statute, he is precluded from going into the question of title in his defense, or disputing the existence of the highway, on the trial before the justice. Manny v. Smith, 10 Wis., 510; State v. Doane, 14 id., 484 ; Soule v. The State, 19 id., 594; Ashbough v. Walter, 24 id., 466; State v. Huck, 29 id., 202; and State v. Preston, 34 id., 675.

The ingenious counsel for the defendant sharply criticises the doctrine of these cases, and claims that the reasoning by which they are sustained is illogical and unsound. Without attempting to vindicate these cases from this criticism, we will merely add in reply to it, that, even if just, this is emphatically a case when it is better to adhere to a construction of the statute already well established, rather than adopt a new construction out of deference to some supposed logical consistency. It would not be a difficult task to show, we think, if the question were new, that an inquiry whether the locus in quo was a highway involved a question of title to lands, within the meaning of the statute. But enqugh has been said upon that point in the opinions above cited. It is said that it was essential to allege and prove on the part of the state the existence of a highway and an obstruction to it, in order to make out a case under the statute ; and that the plaintiff in so doing necessarily shows that the justice has no jurisdiction. But unless the defendant denies the existence of the highway, the mere denial of the trespass only puts in issue the question whether he has ob • structed the highway. A party may admit the existence of the highway, and deny that he has obstructed it. If he wishes to raise the question whether a highway exists or not, he must do so in his answer, and by giving the bond. Then the justice is required to certify the cause to the circuit court for trial; but if the bond be not given as directed, then the statute declares that the justice shall have jurisdiction of the case, and the defendant shall be precluded in bis defense from all evidence drawing in question title to lands. Sec. 58, ch. 120, R. S. As it seems to us, the language of the statute is too plain to admit of doubt as to.its proper construction.

But again, it is said, the evidence offered disproved the “ willfulness ” required to make the act of obstruction penal. It is a sufficient answer to this point to observe that the evidence was not offered for the purpose of disproving the charge of a willful obstruction, but to show “ that the place where the obstructions were placed was not a highway, and also to prove that said alleged highway had been discontinued by the supervisors of the town. ”

By the Court. — The judgment of the circuit court is affirmed.