Soule v. State
Wisconsin Supreme Court
ERROR to the Circuit Court for Dane County. The action below was by tbe state against Soule to recover a penalty under secs. 102 and 103, cb. 19 R. S., for the defendant’s neglect and refusal to rem >ve a fence from an alleged highway in the town of Rutland in said county, after tbe supervisors of said town bad declared tbe fence to be an obstruction of tbe highway, and had ordered its removal, and served notice of such order upon the defendant.
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ERROR to the Circuit Court for Dane County. The action below was by tbe state against Soule to recover a penalty under secs. 102 and 103, cb. 19 R. S., for the defendant’s neglect and refusal to rem >ve a fence from an alleged highway in the town of Rutland in said county, after tbe supervisors of said town bad declared tbe fence to be an obstruction of tbe highway, and had ordered its removal, and served notice of such order upon the defendant. The answer, among other things, denies that the locus in quo has ever been a highway. The court instructed the jury that if an order ■was made by tbe…
1Opinion of the Court
By the Court,
DixoN, O. J.
Whether a highway has been encroached upon, and whether it exists, are clearly distinguishable questions. A party may admit the existence of the highway, but deny the encroachment, in which case the method of determining it is that marked out by sections 102 to 108, inclusive, of chapter 19, R. S. In such case, no doubt, the order of the supervisors, the encroachment not being denied, and after that the verdict of the jury, not reversed or set aside, would be conclusive of the fact of encroachment. But these would be conclusive of that fact aloiie, as that is the only…
2Cases cited3 opinions
- Fleet v. YoungsNew York Supreme Court · 1831
- Whiting v. DudleyNew York Supreme Court · 1838
- State v. DoaneWisconsin Supreme Court · 1861
3Cited by4 opinions
- State ex rel. Reynolds v. BabcockWisconsin Supreme Court · 1877
- State v. SiegelWisconsin Supreme Court · 1882
- State v. ClarkWisconsin Supreme Court · 1886
- Swennes v. SprainWisconsin Supreme Court · 1903