77 Wis. 356 | Wis. | 1890
A former judgment in this action was reversed for error. 74 Wis. 485.
The evidence as to th’e exact location of the fence in front of and northeasterly from Ba/rtletiSs barn prior to the construction of the wire fence in question is considerably mixed and conflicting. There is considerable eyidence on the part of the plaintiff tending to prove that as early as 1862 or 1863, he built a board fence from a foot or so east of the barn door directly north to where the wire fence stood, and from thence easterly, on substantially the same line occupied by the wire fence, to the old board fence mentioned in the foregoing statement; that the fence so running north from the barn was not stationary, but was put up in the fall and taken down in the spring, and sometimes built of one kind of material and sometimes of another; that “ sometimes it commenced at a post a few feet from the west corner of the barn, and ran northeast to the corner post of the barbed-wire fence” designated B in the foregoing statement^that for many years prior to the construction of the wire fence, Bartlett had maintained a fence of some kind on substantially the same line where the wire fence was located.
On the contrary, there is evidence on the part of the' defendants tending to prove that such old fenpe started seven or eight feet east of the barn door and ran in a northeasterly direction until it reached the point designated F in the
Such evidence, with the undisputed facts that the road in question was a part of the public highway from 'Winne-conne to Neenah, and had been for forty years; that northeasterly from the point designated as F, as well as westerly from Bartlett’s barn, this highway was regularly fenced out on both sides, so as to leave a space of from sixty-three to sixty-six feet wide for such public highway,— seems to be sufficient to sustain the verdict to the effect that the part of the wire fence on Bcwtlett’s land pulled down by the defendants was in the public highway, which had become such by lawful user. It is to be remembered that the plaintiff expressly sanctioned the validity of all that part of the highway westerly from his barn, by constructing his road fence about thirty feet south of his north line, thus leaving the highway about four rods wide. The north side of his barn was so nearly in line with the road fence he so constructed as to obviate the necessity of any road fence north of it. Moreover, it is to be observed that a fence commencing seven or eight feet east of the barn door, and then running in a northeasterly direction, as testified to by
It remains to be determined whether there was any material error upon the trial. The learned counsel for the plaintiff excepts to the form of the question submitted to the jury in these words: “ "Whs any part of the fence which the defendants pulled down in a public highway which had become such by lawful user? ” The grounds of the exception are that it did not present the question in issue; that it called for a conclusion of law and not of facts, and was in effect a general verdict. ~We have often held that the form of the special verdict is very much in the discretion of the trial court. There does not appear to have been any abuse of discretion in the wording of this question.
The statutes prescribe that “ all public highways now in use, heretofore laid out and established pursuant to law, and all roads not recorded which shall have been or shall be used and worked as public highways ten years or more, shall be deemed public highways, except ” in certain cases, not here material. Sec. 1294, R. S. Of course this statute was in force for more than ten years prior to the alleged trespass. The court fully instructed the jury to the effect
Several of the instructions requested were either given in substance in the general charge or inapplicable to the evidence, or related to matters admitted or conceded by all and hence not controverted, and therefore properly rejected.
The learned counsel for the plaintiff excepts to the refusal of the court to give an instruction in the language of an English judge, quoted by Colb, J., in Tupper v. Huson, 46 Wis. 649, to the effect that there .must be an actual intent to dedicate, “ of which the user by the public is evidence and no more; and a single act of interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment.” The instruction was not strictly applicable to the case, and if it were it is doubtful whether the court should have charged that every act of such interruption should have such effect as a matter of law. Many temporary interruptions may be imagined, when there would be no intention to obstruct. Besides, it may be questionable whether the proposition is strictly accurate. In the recent work of Judge Elliott mentioned it is said: “ If the acts are such as would fairly and reasonably lead an ordinarily prudent man to infer an intent to dedicate, and they are so received and acted upon by the public, the owner cannot, after acceptance by the public, recall the appropriation. Regard is to be had to the character and effect of the open and known acts, and not to any latent or hidden purpose. If the open and known acts are of such a character as to induce the' belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which
Tbe defense was based upon both dedication and prescription, and there is sufficient evidence in tbe case to support tbe defense on both grounds. Tbe use by tbe public for tbe requisite period, in tbe absence of proof to tbe contrary, must be presumed to have been under claim of right, without proof of any act of tbe town authorities upon the particular land in dispute. Hart v. Red Cedar, 63 Wis. 639. A public highway, established by dedication or prescription or botE stands in law upon tbe same footing as one that has been legally laid out. West Bend v. Mown, 59 Wis. 69. It follows that whoever obstructs any highway so established by dedication or prescription or both, subjects himself to tbe forfeiture prescribed by sec. 1326, R. S. A barbed-wire fence intentionally placed nearly lengthwise the traveled portion of a public highway is certainly an obstruction, within the meaning of that section. State v. Learner, 62 Wis. 387; Power v. Albrecht, 72 Wis. 416. It is much more than a mere encroachment, within the meaning of sec. 1330, R. S. We find no material error in the record.
By the Court.— The judgment of the circuit court is affirmed.