State v. Raypholtz

The opinion of the court was delivered by Horton, C. J.: The question in this case is, did the appellants willfully obstruct the road within the meaning of §17, chapter 89, Comp. Laws of 1879? This section reads: “ If any person shall willfully demolish, throw down, alter or deface any milestone or guideboard on or at the forks of any roads, or shall willfully obstruct any such road by any means or in any manner whatever, every person so offending shall on conviction be adjudged guilty of a misdemeanor, and be punished by imprisonment in the county jail not exceeding three months, or by fine of not less than twenty uor more than one hundred dollars, or by both such fine and imprisonment, which fine shall be paid by the officer receiving the same, into the county treasury for school purposes. And every person obstructing any such road as aforesaid, shall also be liable in a civil action for all damages sustained by any person who has in any manner whatever been damaged by reason of such obstruction.” As it was admitted by the agreed statement of facts that the road obstructed'was and for a long time had been and now is a public road and highway, and that the appellants knew at the time of the erection of the dam that the road was, and for [454] a long time (seven or eight years) had been generally and largely traveled by the public as a public road and highway, in our opinion the statute brings the' road fully within its provisions. Although the dam was erected and maintained for the sole purpose of supplying water power to run and operate a grist, flour and exchange mill owned by the appellants, they acquired no right by the erection of the dam for such a purpose to obstruct the highway either with their dam or by the fiowage of water. “The purely public use of a highway is paramount to the quasi public purpose of a mill. Where the building of a dam overflows and obstructs the highway, the right to proceed with the dam can only be secured by proceedings vacating the highway, or by taking such steps, either raising the roadway or building a bridge, as may be necessary to secure the free ancf unobstructed use of the highway.” (Venard v. Cross, 8 Kas. 259.) It is claimed, however, that as the mill was not built with any intent or purpose to obstruct the road, or in other words, that in the absence of evidence showing that the appellants knew, or at least had reasonable grounds for knowing, the erection of a dam would cause the water in the river to flow back and be of such a depth that the river would not be fordable, they cannot be convicted of willfully obstructing the road by the construction of the dam; and it is claimed there must be evidence of evil intent or bad purpose before the appellants can be convicted. In this connection, the case of The State v. Preston, 24 Wis. 603, is referred to as supporting this claim. In that case, the obstruction was placed in the highway at the direction and with the express authority of the supervisors of the town in which the road was situated, after they had proceeded to discontinue the same. No direction or notice was given from them to remove the obstruction so permitted to be placed there, before the institution of the action. The court, in that case, carefully confined the scope of the decision to the special facts of the case. That decision, therefore, is not decisive. Subsequently to the decision of The State v. Preston, supra, [455] the supreme court of Wisconsin decided that “one who obstructs a highway in defiance of the order of the proper officer in charge thereof, is liable to the penalty for a willful obstruction, although he may honestly believe the locus not to be a public highway, and although he may have been permitted by the previous officers of the same kind to close the highway upon their belief that it had been lawfully discontinued.” (The State v. Castle, 44 Wis. 670.) The record shows that the appellants, immediately after the completion of their dam, for the purpose of ascertaining the depth of the water in the mill-pond and in the river at various places above'the dam, went up the river in a boat from the dam to a point on the river above the crossing of the road, and by means of actual measurement ascertained that at the crossing of the road the dam had raised and increased the depth of water in the river at least three feet over and above what it had been before the erection of the dam. Prior to the erection of the dam, the water in the Chikaskia river, where the same crosses the public road, was of the average depth of eighteen inches; and the road was ordinarily safely fordable. After the erection of the dam, the average depth of water was four and one-half feet, which has not only rendered the crossing of the road unsafe, but practically impassable. The record shows further, that prior to the commencement of this action, the road overseer of the district in which is located the crossing of the road on the river, notified the appellants that the back-water from their dam and mill-pond totally obstructed the road. In answer to this notice, the appellants stated to the overseer that “if he wanted the water removed, to warn out his men and dip it out with buckets.” The appellants therefore not merely obstructed the highway, but continued to obstruct it in defiance of the order of the proper officer in charge thereof, and are liable to the penalty for a willful obstruction. If the term “willful” is construed only to mean designedly and purposely, then upon the agreed facts, the appellants are guilty. If we give to it greater strength, and say that willful in this connection denotes “gov [456] erned by a will; without yielding to reason; obstinate; stubborn; perverse; inflexible,” -then the appellants are guilty. And if we go further, and say that in order to,convict the appellants of willful obstruction, they must hav& committed an act “which a man of reasonable knowledge and ability would know to be contrary to his duty,” then we must say that they are guilty, because, with the knowledge that they had obstructed the'road, they insolently answered the notice of the road overseer, and in defiance of his order continued to obstruct the public road. (The Territory v. Taylor, 1 Dak. 47; Fearnley v. Ormsby, 4 C. P. Div. [Eng.] 136.) The judgment of the district court will be affirmed. All the Justices concurring.