Neis v. Franzen
Wisconsin Supreme Court
APPEAL from the Circuit Court for Fond du Lac County. Action for trespass in breaking the plaintiff’s close, in the town of Marshfield in said county, throwing down his fence, and cutting his trees.
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APPEAL from the Circuit Court for Fond du Lac County. Action for trespass in breaking the plaintiff’s close, in the town of Marshfield in said county, throwing down his fence, and cutting his trees. Answer, that the premises were a public highway, and the defendant, at the time when &c., was one of the board of supervisors of the town of Calumet, in which (the answer alleges) said lands are situate; and that therefore “ the defendant in his own right did all and singular the acts complained of, as he lawfully might,” At the trial, the plaintiff proved that the acts complained of were done by…
1Opinion of the Court
By the Court,
Colb, J.
The whole case abundantly shows that the defendant rested his entire defense upon the ground *542that be did the acts complained of while acting as a supervisor in laying out or opening a highway. All his testimony was obviously directed to make out a justification upon that ground, and no objection was taken that the evidence was not admissible under the answer. If, therefore, we were to assume that the answer was technically defective because it did not distinctly allege that the trespasses complained of were committed by the defendant by virtue of his authority as one of…
2Cases cited1 opinion
- Williams v. HolmesWisconsin Supreme Court · 1853
3Cited by12 opinions
- Donnelly v. DeckerWisconsin Supreme Court · 1883
- Bowman v. Van KurenWisconsin Supreme Court · 1871
- Kollock v. ParcherWisconsin Supreme Court · 1881
- Pool v. Milwaukee Mechanics InsuranceWisconsin Supreme Court · 1896
- State ex rel. Swenson v. NortonWisconsin Supreme Court · 1879
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