9 Wis. 240 | Wis. | 1859
By the Court,
The record, in this case presents numerous exceptions taken by the plaintiff in error, who was the plaintiff below, to the rulings of the court upon the evidence introduced by the defendants, to establish their defense, as well as to the instructions given to the jury. Our views of what we deem the real merits of the case render it unnecessary for us to pass seriatim upon them. It is sufficient for us to say, that they are one and all predicated upon the notion that in no case, except where, by lapse of time and use by the public, the statute declares that a highway shall be deemed to exist, can its existence be shown by parol; that, with this exception, in no case can the owner of the soil part with his right of possession, or the public acquire a right of way, except it be by some instrument in writing signed by the owner, or by some matter of record showing that the provisions of the constitution and statutes relative to highways, have been complied with. This view was entirely erroneous and unfounded.
In addition to the modes already mentioned, highways may also be created by dedication. This last mode is so old and so well established by authority, both ancient and modern, that jit cannot now admit of doubt, or discussion. It is a part of the common law of England, adopted and acted upon, not only by the federal courts, but by the courts of nearly every state in the Union. In the case of Gardiner vs. Tisdale, 3 Wis., 153, it was declared by this court to be a part of the common law of this state. As the law and authorities upon this subject were then fully and ably discussed by the learned judge, who wrote the opinion, we shall not, after briefly answering the position that it violates the statute of frauds, feel called upon to do more than to refer to that case
Although the question of dedication was not as clearly and distinctly submitted to the jurors, as we should desire, and although the court might with great propriety have withdrawn from their consideration the record evidence produced by the town clerk, when it was discovered that it was not applicable to the case; yet we are not of opinion that the judgment should, for these reasons, be reversed. They must have founded their verdict upon the testimony showing that there was a dedication, and, as intelligent men, must have disregarded the record evidence which was before them by mistake. Where a new trial must inevitably result in the same verdict, it ought not to be awarded except for material errors.
The objection that the answer does not set up a dedication, is wholly untenable. It is true that it. is not alleged that Butler “ dedicated ” the land as a public highway, but the facts which in law constitute a dedication, are accurately and fully stated, and this makes it a better pleading.
The judgment of the county court is affirmed.