66 Wis. 133 | Wis. | 1886
Lead Opinion
The following opinion was filed March 16, 1886: -
One can learn the nature of this action on referring to 58 Wis. 274. On the last trial a number of rulings were made by the learned circuit court which are assigned for error. It is said the court erred in allowing ITaseltine’s plat of the village of Richland Center to be introduced in evidence. This plat was offered merely to show the situation of the premises, and to enable the jury to get a better idea of the locality. It was restricted to this purpose, the court saying that it was no evidence of the dedication of the locus in quo for a public street. It seems to us the plaintiff could not have been prejudiced by the admission of the plat for the purpose to which it was restricted. Resides, it does not appear that any exception was taken to the ruling holding the plat admissible to show the situation of the premises.
The'next error assigned is that the court erred in permitting Wesley Fogo and J. L. Fogo to testify as to the acts, of the village board. There is no proper exception to the admission of this evidence even. It appears that these wit-. nesses testified, in substance, but not strictly in response to questions asked, that they made application to the village ■board to remove the obstruction, and that the board ordered it removed. This testimony was objected .to after it was given, but no motion was made to strike it out. Assuming that the answers of the witnesses were incompetent, there is no exception which brings the question as to the admissibility of the testimony before us.
The next error assigned is in permitting witnesses to testify to the acts and- declarations of Haseltine regarding the
The charge of the court is in harmony with these views, and seems to fairly submit all questions of fact upon the evidence. The jury were told that the defendants claimed that the lane was a public highway; consequently that they had the right to remove the fence, doing no unnecessary damage to the material. On tbe question of dedication the jury were in effect instructed that if Haseltine, while he owned the premises, did, by words and acts, dedicate the strip as a public highway, and the public accepted it before tbe plaintiff became the owner, the dedication was good. And the court added: “In order to constitute a valid dedication to the public of a highway by the owner of tbe soil, there must be an intention on the part of the owner to dedicate it, and it must appear from the evidence that there was an absolute dedication of the way to public use. The owner of the soil must not only intend to dedicate the land as a highway, but the public must accept the dedication in order to constitute a public highway. To constitute such acceptance, it is not necessary that the officers of the town or village should formally accept the gift
By the Court. — ’The judgment of the circuit court is affirmed.
Rehearing
A motion for a rehearing was made by the appellant. The following opinion was filed May 15, 1886:
On the motion for a rehearing the court is asked to decide whether or not, at the time of the alleged trespass, the locus in quo was a highway; if so, to define the extent of such highway and the rights of the parties in respect to it. The jury have found upon the evidence that the locus was a public highway. There is abundant testimony to sustain that finding. As to the extent of this highway there is no exception in the record which will justify the court in expressing an opinion on that question, or of entering upon such a discussion. It ought not to be necessary to remind intelligent counsel that in common-law cases which are tried by a court and jury this court can only review exceptions to rulings appearing on the record, and can properly consider no other matter. The issue made by the pleadings was whether or not the locus wa.s a public highway. Evidence was offered on the part of the plaintiff to show that it was not, but was a part of his inclosure. On the part of the defendants, evidence was given to show that it was a highway, and this testimony prevailed with
By the Court.— The motion for a rehearing is denied.