Hornby v. Sikes

56 Wis. 382 | Wis. | 1882

Lyon, J.

The only question to be determined on this appeal is, Can the plaintiff bold the thirty-eight acre parcel of his land mentioned in the complaint as part and parcel of his homestead, his dwelling-house and farm buildings being upon the two-acre lot, which, at the nearest point, is twenty-seven rods distant from the land in controversy? On the authority of Bunker v. Locke, 15 Wis., 635, 'this question must be answered in the negative. One of the head-notes to that case correctly states the proposition there decided as follows: “ A homestead under the exemption law cannot consist of two or more disconnected tracts, containing in the aggregate but forty acres of land, although the ownership of one of them may be convenient for the procurement of' articles (such as fuel and timber) essential to the use and enjoyment of the other, upon which the dwelling is situated.” The judgment in that case did not go upon the ground that the detached lot was a wood lot, or that it was a mile distant from the lot on which the owners resided, as counsel argues, but upon the ground that the homestead can consist of but one body or tract of land. The rule of that case has remained undisturbed for twenty years. It has not been shaken by any subsequent judgment of this court. It is a rule of property, and no doubt valuable property rights have been acquired and are held on the faith of it. Hence, on familiar principles, the maxim store decisis is peculiarly applicable to it.

Counsel for plaintiff dwelt upon the injustice which would result to the owner under this rule, in case his homestead should be divided by the condemnation of a strip through it for a highway or railroad, in which case he argues that the homestead right to the portion thus separated from the part on which the owner resides, would be lost. It seems clear, however, that the mere taking of an easement across the homestead, by right of eminent domain, does not divide the homestead into two separate and detached parcels. The absolute title in fee to the whole, subject only to the easement, remains in the original owner, and this would be so even though such owner voluntarily granted an easement across his premises. The arguments of the respective counsel were learned, interesting, and profitable. They cited numerous cases elsewhere upon the point in controversy. We must be controlled, however, by the established judgments of this court, especially on questions of property rights. We may say, however, that the cases cited have served to confirm our opinion that our statute was properly interpreted in Bunker v. Locke.

By the Court.— The order of the circuit court sustaining the demurrer to the complaint is affirmed.