152 Wis. 135 | Wis. | 1913
This was a suit in equity to enjoin tbe defendants, supervisors of tbe town of Vienna, Dane county, and another from interfering with a fence which tbe plaintiff bad built upon what be claimed was tbe boundary between bis
A certified copy of the record of certain proceedings by the supervisors of this town, had under dates of the 17th, 18th, and 19th of December, 1849, is preserved in the bill of exceptions. That road begins at the quarter-post on the west line of section I, town 9, and range 9, and runs eastwardly, reaching the section comer of sections 16 and II, 20 and 21; from that comer 12 chains east on the section line two burr oak trees were marked, and the surveyor made what he calls his sixth angle, turning south 4 degrees west and running 33 chains to where he marked two burr oak stumps near Mr. Fisher’s. Either the survey or the copy furnished as an exhibit is so defective, uncertain, and contradictory as to be quite unreliable. The surveyor, Hintz, who never had his attention called to this road before June, 1910, testified that he made a resurvey and located the old road and platted it. No monument or marked trees were found at the south end of the road in question.
It requires more confidence than the law places in the re
It is contended that there was no user of a strip four rods wide for the requisite length of time, but the learned circuit court found to the contrary, and the respondents’ counsel refers us to testimony tending to support that finding. The finding is: “That prior to 1885 and for more than thirty years after the public began to travel the said road the distance between the fences on either side of the traveled track was four rods or more.”
“Long occupation and use of a highway is itself strong presumptive evidence of an original laying out.” Randall v. Rovelstad, 105 Wis. 410, 425, 81 N. W. 819. If we assume that the highway as laid out in 1849 was not coincident with the highway as traveled and used for the thirty years next preceding 1885, the case would fall within the rule of State v. Lloyd, 133 Wis. 468, 473, 474, 113 N. W. 964, where it is said:
“It would seem that when a town for more than twenty years, pursuant to proceedings laying out a highway, opens one on a four-rod strip of land fenced out for that purpose and thereby gains a right by adverse possession to use that*138 particular strip for sucb highway, it must in all reason supersede the laid-out way so far as the two do not coincide, as held in Almy v. Church, 18 R. I. 182, 26 Atl. 58; Matteson v. Whaley, 20 R. I. 412, 39 Atl. 754; Grube v. Nichols, 36 Ill. 92; Peoria v. Johnston, 56 Ill. 45.”
If we assume that no highway was ever laid out plaintiff fares no better, for the learned circuit court found a user for more than thirty years next preceding 1885 of a road four rods wide between fences and corresponding with the present location of the road.
We have carefully examined the evidence, and without here undertaking to set it forth are prepared to say that in our opinion it supports the findings of the trial court; so in whatever way we look at this case the judgment must be affirmed.
By the Court. — Judgment affirmed.