72 Wis. 607 | Wis. | 1888
This action was commenced in a justice’s court. The complaint was for an alleged trespass in breaking and entering the plaintiff’s close, being a farm then in the possession of the plaintiff in the town of York, Dane county. The defendant answered, setting up in substance that the loans in gw was a private way two rods in width across the north end of the plaintiff’s land; and that on June 6, 18S7, the plaintiff wrongfully obstructed said roadway by building a gate on the line of said highway, describing the place where the same was built, and that said defendant removed the gate, doing no unnecessary damage.
This answer raised a question of title to real estate, and the defendant gave the proper bond and the case was removed for trial into the circuit court.
The facts, as shown upon the trial, were substantially these: The defendant had a private right of way from his land lying east of and adjoining the plaintiff’s land, across the north end of the plaintiff’s land, running west to a public highway. This right of way was two rods in width. A short time before this action was commenced the plaintiff had set a post at the east end of this private way near to or on the line between the plaintiff’s and defendant’s land, and north of the middle line of said private way. It also
On the trial in the circuit court the plaintiff, in making out his case, simply proved that the defendant had pulled up the post and placed the three stakes as above stated Plaintiff claimed that he was building a fence between his land and the land of the defendant, and placed this post as a part of such fence, and gave no evidence that he intended to use the post except as a part of his intended fence between himself and the defendant. After the defendant had ■closed his case, the plaintiff offered to show that this post was placed at the end of the right of way for the purpose of erecting a gate at that point. This was objected to, and excluded by the court. He also offered to prove the width of the private way as traveled at that point when the plaintiff bought the land across which the way runs. This was also excluded, and exceptions were duly taken by the plaintiff. After the evidence was closed the learned circuit judge directed a verdict for the defendant, and the plaintiff duly excepted.
Upon all the evidence in the case we think there was no error committed on the trial. It appears from the whole case that before this action was commenced the plaintiff had built a substantial gate across this private way near his own house and about twenty rods from the east end thereof, and that the defendant had thrown it down. He had also pulled up the post, and set the stakes complained of. The plaintiff testified that he commenced the action the next d.ay after the gate was thrown down by the defendant, and
The defendant, having shown by his evidence that he was entitled to a way two rods in width, had the right to remove any obstruction placed within the bounds of the way, unless it were placed there for some lawful purpose. As the plaintiff left the case when he rested, it was clear that the post was not placed in the wa3r for a lawful purpose. We are also of the opinion that the defendant had a lawful right to place stakes along the side of the way to indicate the south line of the way, and if he did so without doing any unnecessary damage to the plaintiff’s grain or.grass he committed no trespass.
By the Court.— The judgment of the circuit court is affirmed.