Hubbell v. Goodrich , 37 Wis. 84 ( 1875 )

Lyon, J.

1. The supervisors are charged by law with the care of the highways in their respective towns, and it is their duty to give directions for repairing the same, and from time to time to require overseers of highways therein to perform their duties. R. S., ch. 19, sec. 1 (Tay. Stats., 477, § 1). The supervisors have power, and it is their duty, to cause the summary removal of any public nuisance found in any highway under their jurisdiction. Neff v. Paddock, 26 Wis., 546. And to this end they may require the overseer in whose district it is located, so to remove the same.

Any obstruction in or encroachment upon a highway, whic'h unnecessarily impedes or incommodes the lawful use of such highway by the public, is a public nuisance, and may be summarily abated. Angelí on Highways, §§ 223, 274.

2. The supervisors also have the power, as we think, to cause the summary removal of any structure unlawfully and willfully placed within the limits of a highway by any person, although the same is not a public nuisance. As to the signification of the word “ willfully," as here used, see State v. Preston, 34 Wis., 675.

3. But where the obstruction or encroachment is not a public nuisance, and was not willfully placed in the highway (as where it was placed there by inadvertence or carelessness, without any intention to obstruct the highway), we are of the opinion that the supervisors have no power to cause the summary removal thereof. The remedy given by the statute must be resorted to in such a case. R. S., ch. 19, secs. 102 to 108 (Tay Stats., 508, §§ 138 to 144); Wyman v. The State, 13 Wis., 663.

The learned circuit judge instructed the jury that the defendants were not liable for removing such portion of the fence as was in a public highway, and that if all of the fence removed by them was within the highway, the defendants were entitled to a verdict. This instruction is not qualified in any manner, and it entirely ignores the principle last above stated. Under it the action might be defeated even though the fence was not a public nuisance, and was not willfully placed there by the plaintiff; in which case, as we have seen, the town authorities had no power to remove it summarily. We do not know but the verdict was predicated upon precisely such a state of facts; for the testimony does not conclusively prove either that the fence was a public nuisance, or that it was willfully placed there by the plaintiff.

It was error, therefore, to give the above instruction; and because the error may have injured the plaintiff, there must be another trial. .

By the Court. — Judgment reversed, and new trial awarded.

A motion for rehearing was denied at the same term.