State v. Pomeroy
Wisconsin Supreme Court
APPEAL from the Circuit Court for Book County. Action to recover the penalty prescribed by sec. 1326, R. S., for the obstruction of a highway. The facts will sufficiently appear from the opinion. The plaintiff: appeals from a judgment in favor of the defendant. They argued, among other things, that even if the locus in quo is a highway this action cannot be maintained, because the fence is but an encroachment and not an obstruction.
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APPEAL from the Circuit Court for Book County. Action to recover the penalty prescribed by sec. 1326, R. S., for the obstruction of a highway. The facts will sufficiently appear from the opinion. The plaintiff: appeals from a judgment in favor of the defendant. They argued, among other things, that even if the locus in quo is a highway this action cannot be maintained, because the fence is but an encroachment and not an obstruction. This fence had stood where it now does for many years, and the highway has at all times been sufficient to accommodate all the public travel that there was on the…
1Opinion of the CourtCole, C. J.
For the purpose of this appeal it is assumed that the locus in quo where the defendant’s fence stood was a public highway, either by being originally legally laid, or had become so by user. On this assumption, how does the case stand? The action is brought under sec. 1326, R. S., to recover the penalty for obstructing a highway. If the fence in question really was in the highway as claimed by the plaintiff, it was an encroachment as *665defined in sec. 1330 and subsequent sections. It will be noticed that the statute makes a clear distinction between an obstruction and an encroachment upon a…
2Cases cited2 opinions
- State v. LeaverWisconsin Supreme Court · 1885
- Pauer v. AlbrechtWisconsin Supreme Court · 1888
3Cited by4 opinions
- Konkel v. Town of PellaWisconsin Supreme Court · 1904
- Town of Fulton v. PomeroyWisconsin Supreme Court · 1901
- Jennings v. JohonnottWisconsin Supreme Court · 1912
- Jones v. TobinWisconsin Supreme Court · 1908