State v. Dehn

Siebeokeb, J. Under sec. 1236, Stats. 1898, lands adjoining highways may be entered by the superintendent of highways for the purpose of constructing drains and ditches necessary for the improvement or preservation of such highways.. If any person shall place any obstruction in any such ditch' or drain he shall be liable to a forfeiture as provided by see.. 1326, Stats. 189S. This action was brought to enforce such a forfeiture, and appellant was found guilty of having violated the statute. If is claimed that the conviction is not sustained by evidence. The court found that a drain, carrying the surface water-which collected in the highway onto appellant’s lands at the-point in question, had existed for a long time prior to 1867. It appears that the topography of the surrounding land was; such that the water from a considerable area naturally collected upon the highway at this point, and flowed thence along-a ravine on appellant’s farm. The town improved the highway at this point by raising the Raveled track by ditehing-along the sides, and by opening into and connecting the ditch along the westerly boundary with the drain over appellant’s lands. This opening and connection was maintained without obstruction until 1867, when one Bushee, then in possession of the farm, built a dam across the drain near the margin of' the highway. The town board took immediate action to have the drain reopened by directing the highway overseer to enter171 upon tbe land and remove tbe obstruction. • That overseer is-now deceased, but tbe evidence at band shows that tbe dam. was removed witbin a short time thereafter, and that the-drain was kept open continuously to tbe time appellant obstructed it in 1903. It also appears that appellant took steps-to induce tbe town authorities to change tbe flow of tbe water-by conducting it north through a ditch along tbe highway, thereby diverting tbe water from tbe drain and permitting him to close it. These facts are corroborated by all tbe surrounding circumstances, and tend to support tbe findings complained of. Tbe court’s conclusions of fact are supported by tbe evidence and cannot be disturbed. It is claimed that the appellant is not guilty of tbe offense unless it is found that tbe act complained of was wilfully and’ maliciously done by him. This claim is clearly without merit in view of tbe amendment to sec. 1326 by tbe Revision of 1878, whereby tbe word “wilfully” was omitted from tbe law as it formerly stood, in order, as stated by tbe revisers, “to make the mere obstruction' subject to tbe forfeiture, though not done wilfully.” See, also, State v. Smith, 52 Wis. 134, 8 N. W. 870. Tbe remarks of the writer of tbe opinion in Pauer v. Albrecht, 72 Wis. 416, 39 N. W. 771, to tbe effect that this section applied only when tbe obstruction was wilful and malicious, -are evidently due to an oversight of this amendment, and are based on decisions, to which be refers, antedating it. By the Court. — Judgment affirmed.