Concurring. — The only serious question in this case over which there is any doubt or diversity of opinion among the members of the court is as to whether' or not under the statute the road overseer can maintain an action for the removal of an obstruction on a highway that has not been *151“duly laid out or erected.” Upon the first consideration of this case, I was inclined to the opinion that he could not, but on more deliberate reflection and examination of the various provisions of the statute in reference to highways, and the duties of overseers in relation thereto, I am convinced that he may properly maintain such action. Article 8 of chapter 2, title 6 of the Political Code of 1887 is entitled, “Obstructions und injuries to highways.” The first five sections of that article deal with “encroachments” upon highways “duly laid out and recorded,” and of the duty of the road overseer to give notice to the person maintaining such encroachment, and provide for the prosecution of an action to abate the same in case the encroachment is denied. It will be seen from an examination of sec. 962 of that article that the person who maintains an encroachment upon such a highway is liable to a fine of $10 for each day it is maintained after receiving notice to remove the same. The same section also provides that “if the encroachment is such as to effectually obstruct and prevent the use of the road for vehicles, the overseer must forthwith remove the same.” In other words, where the encroachment grows into an obstruction, then it ceases to be incumbent upon the road overseer to prosecute an action for its abatement, but he may summarily abate it and is vested with all the authority of a public officer to forthwith remove the obstruction or abate the nuisance.
After dealing with the matter of encroachments and the method of abating the same, and the subject of forfeitures and penalties for maintaining them, the legislature passes to the consideration of the subject of “obstructions” to highways, and in sec. 967 it is provided that, “Whoever obstructs or injuries any highway, or obstructs or diverts any watercourse thereon, is liable to a penalty of $5 for each day such obstruction or injury remains, and must be punished as provided in the Penal Code.” The remaining sections of that entire article deal exclusively with what are termed by the legislature obstructions to highways. Nothing is therein said about the road overseer maintaining an action for the abatement of “obstructions,” but sec. 975 provides that “All pen*152alties or forfeitures given in this chapter, and not otherwise provided for, must be recovered by the road overseers of the respective road districts.” This latter section was amended by act of February 7, 1899 (Sess. Laws, 1899, p. 131), but the amendment only deals with the use of the fines so collected. An examination of the several sections from 967 to< 975 discloses that numerous fines and penalties of different grades and character are prescribed for the different kinds and classes of injuries to highways and obstructions thereon. I take it that the legislature had in mind a clear distinction between an encroachment and an obstruction on a public highway. By encroachment they evidently meant and had reference to some intrusion into or trespass upon a highway which would tend to lessen and diminish the width and extent of the public easement, but which would not amount to a complete blocking up of the highway and a substantial delay to passengers and travelers thereon. This view is borne out by the latter part of see. 962, wherein it recognizes that an encroachment may grow into an obstruction such as to “prevent the use of the road for vehicles” in which case the overseer is given the right to summarily remove the obstruction. By “obstruction” they evidently mean something that would prevent, hinder or substantially delay travel over the highway. The moving of a fence over into the road, the construction of a wall out onto a portion of the right of way, the digging of a ditch along the highway and various other acts of this bind and character might constitute an encroachment upon the highway and easement, and yet not amount to an obstruction so as to materially delay or hinder travel. On the-other hand, a fence, building or wall constructed across the-entire road would amount to an obstruction that the road overseer is clearly authorized and entitled to summarily remove.
In Chase v. City of Oshkosh, 81 Wis. 313, 29 Am. St. Rep.. 898, 51 N. W. 560, 15 L. R. A. 553, the supreme court of Wisconsin defined encroachment and obstruction as used in the-road laws of that state as follows: “An encroachment is a. gradual entering on and tailing possession by one of what is. *153not his own; an unlawful gaining upon the rights of possession of another. An obstruction is a blocking up; filling with obstacles or impediments; impeding; embarrassing or opposing the passage along and over the street.” To the same effect see 3 Words and Phrases, 2385, and 6 Words and Phrases, 4891.
It is also worthy of note that all those sections of article 8, supra, providing penalties for placing obstructions in roads uniformly use the word “highway.” Now, a highway includes not only roads duly laid out and erected, but also roads that have been used and worked as such for a period of five years. In other words, it is as much a violation of the law to obstruct a highway that has become such by user, even though it has never been recorded, as it is to obstruct a highway that has been duly laid out and recorded. The legislature has as fully authorized the overseer to maintain an action for the collection of a penalty where the obstruction is on an unrecorded road as where it is on a recorded road. In such case the board of commissioners clearly have no control over him in the sense that they can prevent his maintaining an action. It would seem to be the height of inconsistency to hold that he may maintain an action to recover a penalty for obstructing an unrecorded highway and at the same time hold that he cannot maintain an action for the abatement of the same nuisance for which he has collected a penalty. It requires exactly the same evidence in each case. It is a primary and fundamental rule of statutory construction that where the power and authority is granted to do a certain thing, the act necessarily carries with it the implied power to employ the means necessary to accomplish the result.
See. 873, Rev. Stat., as amended by act of February 7, 1899 (Sess. Laws, 1899, p. 128), provides that, “Koad overseers, under the direction and supervision and pursuant to orders of the board of commissioners appointing them must,
“First. — Take charge of the public highways within their respective districts.
“Second. — Keep them clear from obstructions and in good repair.”
*154This section contains seven other subdivisions, among which .are the provisions providing for notice to inhabitants liable to •do road work and for the collection of commutation fee where work is not performed, making semi-annual reports, etc., etc. I do not think the legislature by this provision meant to limit or subject the right of the overseer to remove obstructions and keep roads clear of impediments to free passage to the orders .and directions of the board of commissioners. Such a construction would be inconsistent with the duties of the road overseer and the general purpose and object of the road laws. I think the legislative meant to authorize the road overseer to .summarily remove obstructions to highways. On the other hand, it seems to-me that if the obstruction is of such a character that the overseer does not feel justified.in assuming the responsibility of a summary abatement, that he may pursue his remedy in court and abate the nuisance and remove the •obstruction by an action and consequent decree of the court. A man might, in some instances, move a house or other building onto the highway and completely block the same, and he might have his family in the building. On attempting to .■summarily remove the obstruction it might appear to the •.overseer that a breach of the peace would be occasioned and violence be the result. In such a ease he would undoubtedly prefer to resort to an action, and, in my opinion, he is granted all the implied power and authority necessary to enable him to prosecute such an action. I concur in the reversal of the .judgment.