I concur with the majority of the court that the locus in quo was a public highway, and that the learned judge of the court below was right in so instructing the jury, as matter of law. But I cannot concur in the position that the learned judge was right in assuming, as matter of law, that the defendant’s obstruction was willful, in the sense of the. statute, and taking that question from the jury. It appears to me that it was a question of fact to be submitted to the jury, under proper instructions.
It was not a question of mere intent to do the act done, in which the law might assume that the party intended what he did. The statute does not give the prosecution for obstructing a highway, but for willfully obstructing it. A construction to the qualifying adverb is very fully given by this court in State v. Preston, 34 Wis., 675. The word is there distinguished from intentionally or designedly. A case is cited, with apparent approbation, making willfully synonymous with wantonly. Another authority is quoted, with strong approbation, commenting on the words knowingly and willfully, in these terms: “The first of these words does not, in common parlance or in legal construction, necessarily and perse imply a wicked purpose or perverse disposition, or indeed any evil or improper motive, intent or feeling; but the second is ordinarily used in a bad sense to express something of that kind, *685or to characterize an act done'wantonly, or one which a man of reasonable knowledge and ability must know to be contrary to.his duty.” And the court comes to this conclusion: “The word willfully, employed in the statute to characterize the offense, can not be construed, as counsel for the plaintiff’ contends, so as to embrace an obstruction erected in the most perfect good faith by the land-owner, believing that no highway existed at the place, and acting-under the advice and direction of the proper officers charged by law with the general supervision and control of all the roads and highways in the town.” It appears that the supervisors in that case had determined that there was no highway at the locus in quo, and instructed the defendant to put up his fence, obstructing what was a legal highway. And the judgment was reversed for the exclusion of evidence to establish those facts.
. In the present case, the supervisors, one year, ineffectually attempted to close the highway at the locus m quo, and licensed the defendant to fence it up on his own premises. The next year, the town authorities ordered the highway reopened, and actually removed the defendant’s fence, which he replaced; and the replacing of his fence was the willful obstruction complained of.
In State v. Preston the defendant was held so far justified by a misdirection of the supervisors; that is to say, that such misdirection absolved him from willfulness in the act. In the present case, the like misdirection would equally justify the defendant for first building his fence across the highway. And his willfulness apj>ears to consist only in his trusting to the authority of one board of supervisors against the authority of another. The highway existed by prescription, and its validity was a mixed question of fact and law. And, as matter of fact, it is certainly open to debate whether, under the circumstances, his act was done wantonly, or was “ one which a man of reasonable knowledge and ability must know to be contrary to his duty.”
*686But if sucb conclusion be justifiable, as matter of fact, it appears, to me to have been one for tbe jury to draw, not for the court. The intent to do an act actually done may sometimes be implied as matter of law. But when the question goes beyond mere intent to do the act, and rests upon the animus with which the act is done, the motive or understanding of the doer, to be gathered from the circumstances, it is a pure question of fact. In this case, as in others of the kind, the conclusion of fact would grow out of the surrounding circumstances in evidence. And, so far as this record discloses, the jury might have found either way.
If the defendant’s willfulness is .to be supported as a conclusion of law, it must go upon the assumption that the defendant was chargeable with knowledge of the law, that the locus in quo was a legal highwajr. The same rule would have applied in State v. Preston. And on this point, it seems to me that that case is in conflict with this.
By the Court. — The judgment of the circuit court is affirmed.