F. W. Woolworth Co. v. Vogelsang, 176 Wis. 366

176 Wis. 366 | Wis. | 1922

Rosenberry, J.

The facts in the case were in the main stipulated, and it is argued here by the defendants that the court erred in the application of the law to the facts and in making certain inferences from admitted facts. The assignments raise two questions: First, Where is the right of way located? -and second, Do the points complained of (X and Y on the diagram) constitute a material encroachment on the way?

The court found that “the strip of land in dispute is the east eight (8) feet of the north 55 feet of the west half of lot 4” and lies on the east side of defendants’ premises; that is, the east line of the strip and the east line of defendants’ premises are coterminous. This is a correct construction of the language of the deed. By mutual agreement the party-wall was built to a point eight feet distant from the east line. If the deed were indefinite, which it is not, the building of the wall would determine the location.

The defendants own the fee of the land upon which the way is located and the plaintiff has an easement for travel or passage on foot and for teams and vehicles upon and over said strip. On behalf of the defendants it is argued that it was not the intention of the grantor of the easement to grant a right of' way eight feet in width measured with mathematical exactness so as to preclude the grantor from inclosing his premises by a fence or wall; that the easterly line of the way is not a mathematical line, but is one having width, and that the grantor has a right to maintain' in such right of way a fence or supporting walls for a structure over the right of way, and that such use by the owner of the fee is not inconsistent with the easement granted.

That the owner of the servient estate is entitled to make such use of it as he may without unreasonably interfering with the use of the dominant owner is clearly established. Gimbel v. Wehr, 165 Wis. 1, at p. 13, 160 N. W. 1; Wallis v. First Nat. Bank, 155 Wis. 306, 143 N. W. 670; Childs v. Dahlke, 151 Wis. 82, 138 N. W. 277, and cases cited.

The difficulty with the position of appellants is that the court found as a matter of fact, and the finding is not here attacked, that the erection of the’posts which narrowed the way in one-case six inches and in the other five inches did materially and substantially interfere with the enjoyment of the rights granted the plaintiff and resulted in serious and unreasonable inconvenience in the use of the way, especially by motor trucks. This 'is conclusive upon the rights of the parties. It does not require argument to show that obliging plaintiff to pass through a space seven feet six inches wide with a truck six feet eight inches wide is a substantial impairment of his rights.

We shall not attempt to determine or settle any other issue than that presented upon this appeal by the facts in this case. We are urged to lay down some general rules in regard to the future use and enjoyment of these premises. This is beyond the province of the court. No one can foresee what future conditions may be, and problems relating to the future use of the premises must await solution until they arise.

By the Court. — Judgment affirmed.