There is no denial in the answer that the locus *148claimed to be a highway was encroached upon by the defendant, but only a denial that the same is a highway. Hence, the controlling questions are: Had a highway previously been laid out and opened where the encroachments were placed or maintained by the defendant? And, if so, were such proceedings had as to render the defendant liable to the penalty imposed by the statute?
The highway must have been “ laid out and opened,” to render the defendant liable to a penalty for encroaching upon it. E. S., ch. 19, secs. 102-106 (Tay. Stats., 508, §§ 138-142); State v. Huck, 29 Wis., 202. It is quite probable that the term “laid out,” as employed in the statute, is sufficiently comprehensive to include any act or process by which the public obtains the right of way in lands, whether it be by act of the legislature, by order of the board of county supervisors, or town supervisors, by grant, by dedication, or otherwise. But, be this as it may, the most narrow signification that can reasonably be given to the term is to restrict it to highways laid out by order of the public authorities.
It is claimed, however, on behalf of the defendant, that the order of the highway commissioners of the town of Troy purporting to lay out the highway in question is void on its face, for the alleged reasons, that it does not recite or show any adjudication or determination by the commissioners that the proposed highway was necessary or required for the public convenience, or state any reason for laying out the same; and because it does not specify the width of the highway. All that the statute then in force required was, that if the commissioners determined to lay out the highway, they should “ make out and subscribe a certificate of such determination, describing the road so laid out particularly by metes and bounds and by its courses and distances.” Township Act of 1841, p. 59, § 10; Laws of 1843, p. 47, § 7. The order or certificate of March 23, 1846, substantially meets this requirement of the statute. It properly describes a line of the highway which is *149tbe quarter-section iine where it passes tbe defendant’s farm. We must take tbis line to be tbe center of tbe highway, and it 'specifies tbe width of tbe road to be three rods. Tbis last specification appears in tbe copy of tbe order in tbe record to have been written to the left of and a little below tbe signature of tbe commissioners, but above tbe town clerk’s entry thereon of tbe date of recording. We must presume, in the absence of proof to tbe contrary, that it is a part of the commissioners’ order.
In respect to tbe attempt to show tbe order void for defects in tbe proceedings — as want of notice to tbe owner, tbe non-consent of tbe owner, tbe failure to award damages, and tbe like — it is only necessary to observe that the bill of exceptions is not certified to contain all of tbe testimony; and, in tbe absence of such certificate, we must presume, in support of tbe verdict, that there was sufficient evidence to warrant tbe jury in finding that all tbe requirements of law in respect to those matters were fully complied with.
On tbe same principle and for tbe same reason, it must be presumed that tbe portion of tbe highway on the defendant’s farm bad been lawfully opened to tbe public use.
We conclude, therefore, that tbe record before us, aided by inevitable legal presumption, shows that tbe defendant maintained an encroachment in and upon a public highway which bad been theretofore “laid out and opened.” It remains to be considered whether such proceedings were bad in tbe premises as to render him liable for tbe penalty imposed by tbe statute.
Tbe town supervisors made an order pursuant to sec. 102-, sv$>ra, requiring tbe defendant to remove bis fence (which is tbe encroachment complained of), in thirty days from the service of the order, and caused tbe order to be served on tbe defendant. Tbe defendant thereupon served upon tbe supervisors a denial that tbe public bad a right of way there, but be did not deny tbe encroachment if there should prove to be a *150highway where his fence stood. Neither the supervisors nor the special jury had jurisdiction to determine whether the locus in quo was or was not a legal highway. Soule v. The State, 19 Wis., 593. We see no fault in the order of the supervisors requiring him to remove the encroachment; and we think there was no sufficient denial of the encroachment to make it necessary to summon a special jury. It seems to us that the failure of the defendant to comply with the order last mentioned rendered him liable to the penalty inflicted by sec. 103, without regard to the action of the jury. He cannot justly complain, however, that the action was brought under sec. 106, for that is most favorable to him —the penalty per day being the same, but the number of days for which he was liable to such penalty being less. True, the action is brought in form under sec. 106, but the gist of it is the maintenance of an unlawful encroachment in the highway after he had been required by lawful authority to remove the same; and we think that the variance is quite immaterial, and may be disregarded after verdict, especially as the objection was not taken at the trial.
Two persons are named in the order of the supervisors — the defendant and one Odell — as having encroached upon the highway. The defendant, when on the stand as a witness, was asked in his own behalf, whether he and Odell ever occupied any lands in common. The offered testimony was rejected, and this ruling is assigned as error. This action sounds in' tort, and torts are always several, no matter how many persons unite in committing them. If the encroachment was maintained by the defendant alone, he is liable, although it is charged that Odell was a party thereto; and if by both jointly, either is liable in a separate action for the penalty. Hence the answer to the question must have been immaterial, and it was not error to reject it.
It follows from the foregoing views, that there was no material error in admitting in evidence the records in the town clerk’s office of the laying out of the highway, and those re*151lating to the encroachment complained of. It also follows that the judgment appealed from must be affirmed, unless there is some error fatal thereto in the instructions given to the jury, or in the refusal of the court to give certain instructions proposed on behalf of the defendant. These will now be considered.
Some of the proposed instructions which the (jourt refused to give, relate to the sufficiency of the certificate of the special jury. We have already seen that such certificate is of uo importance in the case, because the encroachment was not denied, and hence there was no necessity for calling a jury; and it is quite immaterial whether their certificate would or would not have been sufficient had the case required that proceeding.
Another instruction asked on behalf of the defendant, and refused, is to the effect that the order of the supervisors requiring him to remove the encroachment does not sufficiently define an encroachment east of the quarter line. Other instructions were, in like manner, asked and refused, to the effect that the defendant cordd only be held liable for an encroachment on the quarter-section line and west of it, and not for an encroachment east of that line. It will be remembered that the evidence tended to prove that some portion of the defendant’s fence was east of that line. We think all of the instructions prayed on that subject were properly refused. The order of the supervisors specifies that the highway “ is encroached upon on the west side thereof along lands in the occupation of George Babcock and M. A. Odell, by a rail fence by the present occupants thereof, which forms a part of the inclosure of said lands.” It then specifies that the west line of the highway is a line parallel to, and one and one-half rods west of, the quarter line, and that the highway is three rods wide. We do not perceive how the encroachment could have been more particularly specified, and we find nothing in the order which limits the encroachment to that portion of the highway lying west of the quarter-section line. It may also be remarked that *152tbe certificate of tbe special jury specifies tbe encroachment substantially in tbe same manner.
Tbe court was further requested to instruct tbe jury that the alleged highway was not legally laid over tbe defendant’s land; also that it had never been opened through his land. We cannot say whether these instructions should have been given, or whether they were properly refused. To determine that, we should have all the evidence before us. As before observed, in the absence of a certificate that the bill of exceptions contains all of the evidence introduced on the trial, we must presume, in support of the rulings of the court in that behalf, that there was testimony which justified the court in refusing to give the instructions.
It is believed that these observations dispose of all the errors assigned upon the refusal of the court to give the instructions proposed on behalf of the defendant. Concerning the instructions which the court gave the jury, it is only necessary to say that we find nothing therein to which exception was taken, which conflicts with the views above expressed!
By the Court. — The judgment of the circuit 'court is affirmed.