State v. Paine Lumber Co.

WiNslow, J. The loans in quo was duly dedicated to the public use, as and for a street, in 1859, but was never in fact opened or used. The first question arising is, Was it a “ highway,” within the meaning of sec. 1326, E. S. ? If it was not, this action cannot be maintained, because the fine can only be imposed for the obstruction of a “ highway.” This being a penal statute, its construction will be strict; that is, the court will not extend its terms beyond the plain meaning of the words used. What, then, is the plain meaning of the word “ highway?” Does it mean a strip of land which the municipality has a right to open as a highway, but which in fact has .never been open or ca [207] pable of use by the public? We think this question must be answered in the negative. R. S., seo...4971, subd. 5, provides as follows: “ The word highway may be construed to include any road laid out by authority of the United States, the territory of Wisconsin, or of this state, or of any county,” etc. It is defined by Webster as “a public road; a way open to all passengers; ” and such is substantially the definition given in the other standard dictionaries. Such, also, is the natural signification of the word when used in ordinary ,speech. In discussing this very question, under a similar statute in Iowa, the court of that state said: “ Something more than the mere right to use land for the purpose, of travel is necessary to constitute a highway. It must be traveled, or at least capable of use in that way, to make it a highway. Before this condition exists, the right to make a road exists; afterwards the road itself may be said to exist.” State v. Shinkle, 40 Iowa, 131. This reasoning seems to us to be sound. We therefore conclude that the locus m quo was not a “ highway,” within the meaning of this penal statute. Whether the term “highway” is to be thus construed when it occurs in other sections of the statute is not decided. It was argued that the rights of the public had been lost by abandonment and nonuser. As we have decided that the action cannot be maintained under the section on which it was based, we cannot properly decide these questions, and do not do so. By the Court.— Judgment reversed, and cause remanded for a new trial.