150 Wis. 115 | Wis. | 1912
Lead Opinion
The following opinions were filed January 9, 1912:
His Honor, Mr. Justice Vinje, tried this, case while on the circuit bench, and is therefore disqualified from talcing part in the decision on the appeal in this court. Justices Siebeckee, Keewin, and Timlin are of the opinion that the judgment of the circuit court should be reversed. Chief Justice Winslow, Justice Maeshall, and the writer are of the opinion that the judgment appealed from should
By the Court. — It is so ordered.
Tbis case is affirmed upon equal division between tbe six qualified members of tbis court. Nevertheless I think it advisable to make a memorandum of tbe reasons which led me to vote for reversal.
In tbis ease tbe plaintiff owned a piece of land about 400 feet in width abutting on tbe east side of a public highway. On tbe west side of tbis highway lies Lake Geneva, a meandered navigable body of water.
It was contended by tbe plaintiff and tbe court found that a narrow strip of the plaintiff’s land extended west' of tbe highway and between tbe western boundary of tbe highway and tbe waters of Lake Geneva. Tbe highway was sixty-six feet wide and skirted tbe lake for some distance. Tbe plaintiff desired to connect bis land with tbe waters of tbe lake by a ditch across tbe highway and applied to the town board of supervisors for permission so to do, and that board refused permission by declining to take any action granting such permission. Tbe circuit court found that' prior to tbe commencement of tbe action tbe defendants, who are tbe supervisors of tbe town of Linn, threatened to prevent tbe plaintiff from constructing and maintaining a tunnel or subway upon bis land under said highway, and "that a tunnel or subway constructed according to plans and specifications annexed to tbe findings and according to tbe findings would not unreasonably interfere with tbe public easement. Conclusions of law and a judgment followed, tbe judgment perpetually restraining tbe defendants from in any wise interfering with tbe plaintiff in tbe construction or maintenance of said tunnel or subway or tbe use thereof, “provided, however, that tbe foregoing is conditioned as follows: (A) That tbe plaintiff
This is called a tunnel or subway. It is in fact an open ditch sixty-six feet in length, fourteen feet wide, and four and one-half feet deep extending clear across the highway,
“Any person owning land lying on both sides of any highway is hereby authorized to construct a tunnel under such highway, also the necessary fences for the passage of stock, and other purposes, to and through the same, in such manner as will not interfere with or endanger travel on such highway. All such tunnels shall not be less than twenty-live feet in length and shall be maintained by the person constructing the same, and the owner of such property shall be liable for all damages which may be occasioned by reason of the failure to keep the same in repair; provided, that the electors of any town at an annual town meeting may by vote authorize the construction of any designated tunnel therein of the length of not less than sixteen feet. The chairman of every town shall see that all tunnels in his town are made in accordance with the provisions of this section and that they are kept in good repair.”
It was not the purpose of the plaintiff t'o construct any tunnel. He wished to dig a ditch across the highway fourteen feet wide and of sufficient depth to permit him to float ice from Lake Geneva across the highway to his ice house situated on the east side of the highway, and to construct a bridge over this ditch to accommodate the public travel along the middle or traveled portion of the highway. Manifestly he is in no wise aided by the tunnel statute above quoted, for the sufficient reason that this is not a tunnel. This ditch remains open the whole width of the highway, except that the twenty-eight middle feet thereof are spanned by the bridge in question.
I think under sec. 819, Stats. (1898), which provides that the supervisors shall have charge of all the affairs of the town not by law committed to other officers; by sec. 1223, which provides that the supervisors of the several towns shall have
“The control of streets or roads and the grades and changes made thereon are not to be determined by the abutting owners, but are by statute placed under the control of the local municipal authorities. It follows that, an abutting owner has no right to take possession of a public road or street and change its grade without authority from the body having it under statutory control.”
See, also, Snively v. Washington Tp. 218 Pa. St. 249, 67 Atl. 465, 12 L. R. A. n. s. 918; Bybee v. State, 94 Ind. 443; Congreve v. Smith, 18 N. Y. 79; Lansing v. Smith, 8 Cow. 146; Comm. v. King, 13 Met. 115. None of the other cases brought to our attention relative to the title of an abutting
One of the grounds upon which Sir Edwaed Coke was removed from the office of Chief Justice of England was his interference by judicial decisions with the administrative duties of the commissioners of sewers. Chief Justice Moun-tague, who succeeded him,' was upon his appointment to that office admonished in the quaint style of those days to hear causes with patience; bear with the prolixity and impertinent
I come to this conclusion on the hypothesis that Lawler owned a narrow strip of land west of the highway and between that and the waters of Lake Geneva. But I will add further that I have carefully examined the evidence as to such ownership, and I think it is shown almost to a demonstration that Lawler’s land does not at the place in question extend west of the highway as laid out.,
The appellants moved for a rehearing.
In support of the motion there was a brief by John B. Simmons and Charles S. French, attorneys, and Thomas M. Kear-ney, of counsel; in opposition thereto a brief by Burr W. J ones and J. L. O’Connor.
The motion was granted on March 12, 1912, and the cause was reargued on April 27, 1912.
Eor the appellants there was a brief by Charles S. French, Simmons ■& Walker, and Thomas M. Kearney, and oral argument by Mr. Simmons and Mr. Kearney.
Burr W. Jones and J. L. O’Connor, for the respondent.
The following statement of facts and opinion were filed June 4, 1912:
This is an action in equity brought by the owner of land bordering on the eastern end of Lake Geneva to enjoin the town supervisors of the town of Linn in Walworth county from hindering or preventing him from constructing a channel, or covered waterway, under and through a highway of the
The plaintiff makes three claims, viz.: (1) that he has the right to construct the channel or tunnel under a written permit alleged to have been given by the three supervisors of the town of Linn to one Dennison, plaintiff’s predecessor in title, July 22, 1901; (2) that, inasmuch as the highway runs through his property, leaving part of his land on one side and part on the other, he has a common-law right to dig a ditch or channel across the highway and connect the two parcels by a waterway, building and maintaining such bridges as may be necessary to provide for public travel; (3) that he has a right to construct such a waterway under sec. 1346, Stats. (1898), which provides that “any person owning land lying on both sides of any highway is hereby authorized to construct a tunnel under such highway, also the necessary fences for the passage of stock, and other purposes, to and through the same, in such manner as will not interfere with or endanger travel on such highway.”
The plaintiff desired to erect an ice house on his land east of the highway and wished to construct the channel from the lake across the highway for the purpose of floating ice from the lake to his ice house. Before bringing the action he presented to the defendant supervisors a communication claiming
The so-called tunnel or subway was in effect a bridge thirty-one feet wide over a water channel fourteen feet in width, extending across the highway. The bridge elevated the grade of the prepared way two feet, and the plaintiff was required to grade the highway 100 feet in each direction so as to bring it up to the proposed level of the bridge. The supervisors were enjoined from interfering with the plaintiff in the construction of the channel or tunnel, and from this judgment the defendants appeal.
The reargument which has been had in this case has cast new light on the case, at least to the mind of
All the members of the court were convinced on the first hearing that no rights could be claimed under the so-called Dennison permit, and they are all of the same opinion now. There may be more than one good reason which can be given for this conclusion, but there is certainly one which is entirely sufficient, and that reason is that the permit was never granted at a meeting of the town board. The testimony shows without dispute that the members of the board signed it individually at different times and places, and that no action ever was taken at any meeting of the board, either regular or special. It is well settled that where an act must be done by a board the action must be taken at a meeting at which all are present, or of which all have had proper notice, in order to make the action binding. McNolty v. Board of School Directors, 102 Wis. 261, 78 N. W. 439; Lisbon Avenue L. Co. v. Lake, 134 Wis. 470, 113 N. W. 1099.
As has been said in the statement of facts, the initial and fundamental question in the case is the question of the location of the highway which skirts the eastern end of Lake Geneva and crosses the western end of the plaintiff’s premises, which are 400 feet in width from north to south. The highway is frequently called the “beach road” by the witnesses, because it passes along the beach of the lake at only a slight elevation from the surface of the water for a distance of more than half a mile. If the western line of the highway reaches the edge of the lake in front of the plaintiff’s premises he cannot successfully claim the right to construct the waterway and bridge in question, either under common-law principles or the provisions of the “tunnel” statute, because in either case it is necessary that the party claiming the right, own 'property on each side of the highway.
The road in question was four rods in width, and is admitted to have been laid out in 1839. In May of that year a
The changes of course at the points G, D, and E are so slight that upon a small map they are not very noticeable, but there is a substantial change at each place. It is quite evident from mere inspection of the map that from the point 0 to the point F there was a deliberate following of the shore of the lake for some reason. The courses D to E and E to F are north 4 degrees and north 9 degrees 15 minutes west respectively. There is, however, a narrow strip of land represented as intervening between the highway and the lake. The plaintiff’s premises consist of a strip of land 400 feet in width from
It appears by the testimony that in or about the year 1873 a considerable change was made in the north part of the highway. All that part lying in section 36 was discontinued and closed up, as well as about' twelve or thirteen chains in length of the north end of that part which lies in section 1, and the course of the highway was radically changed so that, beginning at a point nearly midway between the points G and H, it diverges sharply to the northeast and enters the village of Geneva on the south line of section 36, between eleven and twelve chains east of the south quarter-section corner of said section. Since the original laying out of the highway in 1839 the same has been constantly in use and has for all that time been the principal and only reasonably direct highway connecting the town of Linn with the village of Geneva (now city of Lake Geneva). None of the original monuments, stakes, or witness trees are now in existence. The surveyors who were sworn for the plaintiff and those who were sworn for the defendants commenced their surveys at the point A, and substantially agree that it is correctly located in the middle of the present traveled track of the highway. They also seem to agree that the first two courses of the road from A to 0 have been changed so that the road runs further to the west
Some pertinent facts are to be noted with reference to the Powrie survey. So far as concerns that part of the road which skirts the lake (and this is the principal part of the road which has never had its course changed by official action), it comes much nearer to the lines of actual travel which have existed from time immemorial than the Teeple line. At . the only points where there are any monuments it agrees more nearly with them than the Teeple line. At the point E there was a small inlet into the lake when the original survey was made, and the notes of the original survey state that a stake was planted on the north back of the inlet. A small bridge was at once constructed at this point and retained for a good many years, but finally was moved south some distance and the channel filled up. It seems natural that the bridge should have been constructed in the right place, for the stake was doubtless then in existence, and, if so, then it seems quite certain that the traveled road at this point is in the right place, and the evidence is clear that Mr. Powrie’s line is in about the center of the traveled road at E. Again, the Powrie line
There was another survey made by an engineer named Carlson, which agreed substantially with Mr. Powrie’s, but adds nothing materially to the strength of Mr. Powrie’s position. Mr. Teeple was assisted in his survey by a civil engineer named Haskins, whose testimony corroborates that of Mr. Teeple as to the manner of the survey, but adds nothing materially to it. Prof. L. S. Smith of the College of Engineering of the University of Wisconsin also consulted with Mr. Teeple after the latter’s survey, and made examination as to the remains of witness trees at D and E, corroborating Mr. Teeple’s claims as to the probable location of those supposed trees. He also corroborated Mr. Teeple as to the proper method of correcting a random survey when no monuments or •stakes are to be found.
After all is said and done, however, it must be admitted, we think, that the evidence of the surveyors is not very satisfactory. Were it not for other facts now to be considered, we certainly should not feel called upon to interfere with the findings of the trial court. One important fact, however, has developed from examination of the exhibits since the trial and decision •of the case below which would have presented quite a different question to the trial court. It was assumed from start to finish that the point H was located by Norris 125 links east of the quarter-section corner on the south line of section 36. Mr. Teeple’s entire corrected survey is founded on this fact. It now appears that it cannot be determined whether the distance was 125 links or 1.25 links. The question is, Was there a decimal point between the 1 and the -2 or not ? Two maps and surveys of the road were found to be on file in the office of the county clerk. Roth seem to be originals, and they seem to be substantially identical, except that in one the point H is described as “125 links” east of the quarter corner, and in
It is said, by respondent that there is a description of the highway in the records of the county surveyor’s office without a map which fixes the stake 125 links east of the quarter corner, but it is admitted that this was not introduced in evidence, although it was referred to by the surveyors in their evidence. Mr. Norris, it appears, was county surveyor when the survey was made. It is said by the respondent that the 1.25 is a palpable mistake; that no surveyor would make a. line terminate a distance of 1.25 links, or about ten inches, from a quarter comer. In corroboration of this contention they point to another distance in the survey where the distance to a bearing tree is given as 151 links in one survey and 1.51 links in the other, and they say that no surveyor would measure such a distance as the hundredth of a link. They then suggest that the first document described was intended to correct the second. These considerations seem plausible, and there are others which might be named, but. nevertheless we must face the fact that we do not certainly know which distance is correct. It may be more probable that 125 is correct, but it is not certain. This adds an element of confusion and doubt not present when the findings of fact were made, and what effect it might have had upon those findings we cannot know. The entire situation forcibly illustrates the danger of trying to relocate old lines by running courses, and distances with no known monuments as guides. Mr. Teeple finds some remains of roots seven feet from where they should be, and he conjectures that they are the roots of the witness tree described as existing more than seventy years ago; Mr. Powrie finds the call of 125 links does not correspond with the statement of eastings, and he conjectures that.
In the present case we are convinced that there is such cogent proof of practical location of the highway in question in front of the plaintiff’s premises that it must be held to overcome the testimony of the surveyors and settle the question adversely to the plaintiff’s claim. Especially does this result seem inevitable in view of the fact of the uncertainty of the location of the point II, upon which the accuracy of the Teeple survey wholly depends.
The facts as to this practical location are substantially undisputed and the more important facts may be briefly summarized as follows: The highway is a main traveled thoroughfare by which the inhabitants of the entire country south of the lake approach the city of Lake Geneva, and has been such
This seems to us very strong evidence of practical location of the highway, a location which ought not to be upset by a mere survey depending on courses and distances, especially when such survey is founded upon a conjecture as to the location of a controlling point.
Furthermore, it appears that over this entire open space of approximately four rods in width the public has always, so far as any one can remember, exercised the right of travel, diverging from the traveled track when it was heavy and driving either on the grass to the east, or on the grass or hard sandy beach on the west, also driving into the water to water horses or set wagon tires, and in winter driving on to the ice to seek a shorter route to town. These latter acts are not particularly persuasive in themselves alone, but in connection with the other evidence as to the appearance and use of the entire strip they help to give character to that use.
We are not unmindful of the fact that upon the original map there appears to be a strip of land between the road as laid out and the lake, nor of the fact that the center of the highway at the point H appears to be considerably more than 1.25 links east of the quarter-post. These are facts entitled to be considered, but we have been unable to consider them as at all controlling.
The great and overshadowing fact remains that for nearly
We do not consider it necessary to split hairs as to the exact width of this strip. At times when the water has been low it seems to have been a few feet more than four rods in width; at other times it has doubtless been less. ' It is quite difficult, if not practically impossible, to fix the exact point of ordinary high water where the bed of the lake begins. C. Beck Co. v. Milwaukee, 139 Wis. 340, 120 N. W. 293. We regard the whole strip opposite the plaintiff’s premises from the fence and thicket line westward to ordinary high-water mark as constituting the highway by practical location which has existed unchallenged for so many years that it would be unjust to the public to now change the lines because of surveys whose accuracy can never be demonstrated.
We hold, therefore, that under the evidence the plaintiff owns no land west of the highway, and hence has neither a common-law nor statutory right to a tunnel or channel under or across the highway. This renders it unnecessary to pass upon any other questions presented.
By the Court. — Judgment reversed, and action remanded with directions to render judgment for defendants, dismissing the complaint with costs.
The following opinion was filed June 10, 1912:
The point covered by and decided in the opinion of the court written by Chief Justice WiNsnow is included in and part of the more comprehensive theorem ad
The following opinion was filed June 20, 1912:
Dissenting Opinion
(dissenting). The conclusions reached by the court in this case are summarized in the final paragraph of the opinion, where it is said: “We hold, therefore, that under the evidence the plaintiff owns.no land west of the highway, and hence has neither a common-law nor statutory right to a tunnel or channel under or across the highway.” (The italics are mine.)
I believe the decision is contrary to well settled principles of law and that the court' in reaching its conclusion has overturned findings of fact made by the trial judge which were not only well supported by the evidence but were sustained by the decided preponderance of proof. I think the plaintiff was entitled to judgment independent of the tunnel statute and regardless of whether or not he owned land between the road and the lake. If the tunnel statute be held to confer a new right rather than to regulate the exercise of an existing one, then I think the plaintiff was entitled to relief under that statute because the proposed construction was a tunnel and the plaintiff did own land on both sides of the highway as well as the highway itself. The case is an important one,
The plaintiff owns the fee in the highway and the public has a mere easement across his land. Andrews v. Youmans, 78 Wis. 56, 47 N. W. 304; Wegge v. Madler, 129 Wis. 412, 109 N. W. 223; Smith v. Beloit, 122 Wis. 396, 100 N. W. 877; Brown v. Baraboo, 98 Wis. 273, 74 N. W. 223; Chase v. Oshkosh, 81 Wis. 313, 51 N. W. 560; Donohoo v. Murray, 62 Wis. 100, 22 N. W. 167; Pettibone v. Hamilton, 40 Wis. 402. It is conceded that Lawler's land runs to the lake, so he owns the fee in the highway whether the lake forms it’s western boundary line or not.
The right of the public in a highway is well defined. It has the right of passage. It may cut down elevations, fill depressions, grade the roadway, and make reasonable use of the material which it finds on the right' of way for construction and repair work. It may improve and fit for travel so much of the right of way as it sees fit, and prevent obstructions in or encroachments on the road' that would endanger or materially interfere with travel. On the other hand, the owner of the fee has the right to use his land for all purposes consistent with the enjoyment of the easement acquired by the public. 37 Oyc. 207, and cases cited in note 1.
“The public have simply an easement, a right of passage along the highway, but' not the right to make a pasture of the road. . . . And as a general rule in this state, the fee of the*147 highway belongs to the owner of the adjoining ground, subject to this easement or right of passage in the public/’ Harrison v. Brown,, 5 Wis. 27, 31.
An individual has no right to pile wood along the unused portion of a highway against the protest of an abutting owner. “To establish any such right as incident to a public easement, would be a flagrant violation, not only of the rights of landowners, but of the public also.” Orton v. Harvey, 23 Wis. 99, 102.
The owner of a city lot, having an estate in fee to the center of the adjacent street, has a right to the enjoyment of any use of his estate, consistent with the servitude to which it' is subjected. And where such owner has occasion to build thereon, he may lawfully unload his materials and-earth within the limits of the street, taking care not to improperly obstruct the street, provided he removes such material within a reasonable time. Hundhausen v. Bond, 36 Wis. 29. To the same effect are Gardiner v. Tisdale, 2 Wis. 153; O'Linda v. Lothrop, 21 Pick. 292; Clark v. Fry, 8 Ohio St. 358; Storrs v. Utica, 17 N. Y. 104; Chicago v. Robbins, 2 Black (67 U. S.) 418.
The abutting owner has a right to use the subsurface of the street for legitimate purposes, provided such use does not interfere with the right of the public in the street. Papworth v. Milwaukee, 64 Wis. 389, 25 N. W. 431.
The correctness of these decisions of our own court has never heretofore been questioned. The principles thereby established are abundantly supported by the decisions of other courts.
The owner of the soil over which a highway is located is entitled to the entire use of the land, except the right which the public has to use the land and materials- thereon for the purpose of building and maintaining a highway suitable for the safe passage of travel. And the public have no right to take materials from the right of way for any purpose other
Tbe abutting owner is “entitled to tbe timber and tbe grass wbicb may grow upon tbe surface, and t'o all minerals wbicb may be found below it.” Barclay v. Howell's Lessee, 6 Pet. 498, 513.
Tbe original owner “bas a right to tbe freehold and to all tbe profits wbicb may be derived from it, consistently with tbe right of passage of tbe public, — to all mines beneath tbe surface, to all trees, grass and pasturage upon and above tbe surface.” Tucker v. Eldred, 6 R. I. 404.
“Tbe public acquires a right of way with tbe powers and privileges incident to that right, such as digging tbe soil, using tbe timber and other materials found within tbe limits of tbe road, in a reasonable manner, for tbe purpose of making tbe road and its bridges. Tbe former proprietor of tbe soil still retains tbe exclusive right in all tbe mines, quarries, springs of water, timber and earth, for every purpose not incompatible with tbe public right' of way.” Pemberton v. Dooley, 43 Mo. App. 176.
A right of way existing in tbe public over land for a highway is a right of passage, and not a right to get water in tbe streams or springs on tbe soil of tbe landowner, and a spring in a public highway is not a part thereof, nor is its use an incident to tbe use of tbe road, and the landowner bas a right to fence it off from tbe public use as long as tbe use of tbe highway is not theréby unreasonably interfered with. Old Town v. Dooley, 81 Ill. 255; Tacoma S. D. Co. v. Chicago, 247 Ill. 192, 93 N. E. 153.
Tbe abutting owner bas tbe right to remove gravel from tbe right of way unless thé material so taken is necessary for tbe construction or repair of such roadway, provided tbe roadway is not materially injured by removing such gravel. Glencoe v. Reed, 93 Minn. 518, 101 N. W. 956, 67 L. R. A. 901.
The owner of the fee has a right to sell sand from a bed located on one side of the traveled road, provided no injury is done to the highway by such removal. Williams v. Kenney, 14 Barb. 629.
The building of a pipe line along a highway does not come within the use for which the highway was intended; the owner has the right not only to expel those who are engaged in the unlawful work, but also the right to tear up and remove the pipes which they have placed in his land. Consumers'’ G. T. Co. v. Huntsinger, 14 Ind. App. 156, 39 N. E. 423.
A contractor for the construction of a sewer is liable to the .owner of the fee for the value of stone taken from a ledge in the street which it was not necessary to remove for the purpose of constructing the sewer. Viliski v. Minneapolis, 40 Minn. 304, 41 N. W. 1050.
Where the public authorities had piped water from a spring on the side of a highway to a public drinking trough, the abutting owner undertook to take up the pipes and was restrained from so doing by the town authorities. The court said that subject to the public easement the abutting owner “may take trees growing upon the land, occupy mines, sink watercourses under it, and generally has a right to every use and profit which can be derived from it, consistent with the easement, and when disseized (as he may be) can maintain ejectment and recover possession subject to the easement', and can also maintain trespass for any act done to the land not necessary for the enjoyment of the easement, which would be actionable injury if the land was not covered by the highway.
“When tbe sovereign imposes a public right of way upon tbe land of an individual, tbe title of tbe former owner is not extinguished; but is so qualified that it can only be enjoyed subject to that easement. Tbe former proprietor still retains bis exclusive right in all mines, quarries, springs of water, timber, and earth, for every purpose not incompatible with tbe public right of way.” Jackson v. Hathaway, 15 Johns. 447, 452.
Other cases bolding a like doctrine are Chamberlain v. Enfield, 43 N. H. 356; Holden v. Shattuck, 34 Vt. 336; Overman v. May, 35 Iowa, 89; Board of Comm’rs v. Beckwith, 10 Kan. 603; Winter v. Peterson, 24 N. J. Law, 524, 61 Am. Dec. 678; West Covington v. Freking, 71 Ky. 121; Phifer v. Cox, 21 Ohio St. 248; Bolling v. Mayor, etc. 3 Rand. (Va.) 563; Highway Comm’rs v. Ely, 54 Mich. 173, 19 N. W. 940.
Proceeding now to what might be termed cases directly in point, that is to say, cases where tbe foregoing principles were applied so as to give tbe abutting owner tbe right to construct ditches and carry watercourses in and across a highway, we find that they are uniformly to tbe effect that tbe
The common-law right of an abutting owner to cut a ditch so as to carry a raceway across a highway is recognized and impliedly sanctioned in President, etc. v. Mann, 59 Wis. 69, 17 N. W. 972, where it is held that when such a channel is cut the owner of the raceway is liable for the maintenance of the bridge.
“The owner of the soil traversed hy the highway had the right to construct a watercourse across it. . . . This familiar and well settled rule of law does not in our opinion grow out of the feudal tenure, or any peculiarity in the laws of England in relation to the duties of parishes, as argued by the defendant’s counsel, but results, as we think, from the fact that the public right is a mere easement, and the owner of the soil, as such, can lawfully do anything upon it that does not' interfere with the public easement.” Inhabitants of Woburn v. Henshaw, 101 Mass. 193, 198.
To the same effect are Parley v. Chandler, 6 Mass. 454, and Adams v. Emerson, 6 Pick. 57.
The owner of land through which a public road runs may cut a passage across the road for the purpose of draining his land or running water to his mill, because the land is his own, but in doing so he must not injure the public easement, and. to preserve it must construct bridges over such ditches where they cross the road and must keep the same in repair. Woodring v. Forks Tp. 28 Pa. St. 355.
Later it was held by the same court that the owner of land adjoining a highway may cut a ditch .across the road, but he must, by bridging or otherwise, make the highway as safe for travel as before. Phoenixville v. Phoenix Iron Co. 45 Pa. St. 135.
The general rule is laid down in 15 Am. & Eng. Ency. of Law (2d ed.) 419, as follows:
“The owner of the fee may sink a drain or watercourse below the surface of the highway, or make any other excavation*152 therein, provided be takes proper precaution to cover it so as not to interfere with the safety and convenience of travelers.”
The owner of land through which a highway passes may dig a ditch across such highway, but if he does he must by bridging or otherwise keep the highway as good and safe for •travel as before. The court said the defendant certainly committed no trespass in digging the ditch.
“It was his own soil. The only right adverse to his was one to have a common highway for the purpose of travel. All the public could require was, that he should make and keep the road as good as it was before he dug his ditch. That he accomplished by building a substantial bridge originally, which did not get' out of repair for a number of years. The road, however, in the end, proved to be less safe than it was when the bridge was first built, certainly less so than before the ditch was dug. In suffering this, the defendant came short of his obligation to the public.” Dygert v. Schenk, 23 Wend. 445 (op. by CoweN, J.).
The owner of the fee in a public highway may sink a watercourse under it for use in connection with the adjoining premises where the highway is not thereby rendered unsafe. Clay v. Hart, 25 Misc. 110, 55 N. Y. Supp. 43.
The owner of the fee in a public highway may dig ditches therein to drain his lands, provided his acts do not render the highway less safe, useful, or convenient for the public. Nelson v. Fehd, 104 Ill. App. 114; affirmed in 203 Ill. 120, 61 N. E. 828.
“It is well established in this state, in conformity with the principles of the common law, that a highway is simply an easement or servitude, conferring upon the public only the right of passing over the land on which it is laid out, and, as an incident of such right, that of using the soil and the materials upon it in a reasonable' manner for the purpose of making and repairing it. The title of the owner of the land is not extinguished, but is simply so qualified that it can only be enjoyed subject to the easement. He retains the fee and all rights of property in the land not' incompatible with the
The same question was before the South Carolina court, and it was held by that court' that the abutting owner had the right to carry a conduit for water under the highway. Baring v. Heyward, 2 Speers (S. C.) 553.
The owner of a raceway adjoining a public street may lawfully increase the flow of water to his mills so long as the safeguards erected by the public remain sufficient. State v. Society, etc. 46 N. J. Law, 274.
Where a defendant was the owner of the land within the limits of a country‘highway, subject only to the public easement, and the land contained a valuable deposit of sandstone, defendant was not required to maintain the highway unobstructed to its full width so as not to interfere at all with the use of the highway for public travel as a condition of its right to remove the sandstone, but was only required to keep a passageway open and in good repair within the limits of the highway on the surface of the ground or by a bridge of width sufficient to enable teams to pass each other. Clarendon v. Medina Q. Co. 92 N. Y. Supp. 530, 1148.
Since the public has only an easement of use in a highway, and the fee rests in the abutting owner, be may make such use of the land within the highway as will not interfere with its use by the public. Such owner may use the highway on which t'o maintain irrigation ditches for the benefit of his land, provided he does so without creating a nuisance or interfering with its use as a highway. Holm v. Montgomery, 62 Wash. 398, 113 Pac. 1115.
The state of Oklahoma passed an act forbidding firms or
I am at a loss to know upon what theory it is claimed that the abutting owner has no common-law right to construct a ditch in a highway simply because he does not own land on both sides of the road. So long as he confines his activities to the part of the highway which he owns in fact, he may make any lawful use of it which he sees fit, provided that by so doing he does not unreasonably interfere with the public use. To say that he cannot do this, is to deprive him of the use of his property without compensation and for a purpose that is not public. Admittedly the plaintiff owned the land over which the road was built to the ordinary high-water line. He had the right to construct his ditch to this point if by so doing he did not interfere with the public easement. Even if he were obliged to stop there, the ditch might be of great use to him in the transportation of ice to his ice house. He is denied the right to use his property to the ordinary high-water mark. This denial is not put' upon the ground that the proposed ditch would materially affect the enjoyment of the easement of the public. The trial court found that it would not. This finding is not' attacked in any way in the
I have stated that tbe plaintiff had a clear right to carry bis ditch to tbe ordinary high-water line of tbe lake. Although tbe question is not very material, I do not for a moment concede that be was obliged to stop there. He bad the right to cut tbe banks and connect bis-ditcb with the lake, provided that by so doing be did not interfere with tbe public right of navigation or of bunting or fishing. Tbe riparian proprietor on a navigable lake bas certain well defined rights and privileges peculiar to himself, which extend beyond bis boundary line and into public waters.
A riparian proprietor on a navigable lake
“bas tbe right of exclusive access to and from tbe waters of tbe lake at that particular place; be bas tbe right to build piers and wharves in front of bis land out to navigable waters*156 in aid of navigation, not interfering with, tbe public use. These are private rights incident to the ownership of the shore, which he possesses, distinct from the rest of the public. All the facilities which the location of his land with reference to the lake affords, he has the right to enjoy for purposes of gain or pleasure; and they oftentimes give property thus situated its chief value. It is evident from the nature of the case, that these right's of user and of exclusion are connected with the land itself, grow out of its location, and cannot be materially abridged or destroyed without inflicting an injury upon the owner which the law should redress. It seems unnecessary to add the remark, that these riparian rights are not common to the citizens at large, but exist as incidents to the right' of the soil itself adjacent to the water. In other words, according to the uniform doctrine of the best authorities, the foundation of riparian rights, ex vi termini, is the ownership of the bank or shore. In such ownership they have their origin. They may and do exist though the fee in the bed of the river or lake be in the state. If the proprietor owns the bed of the stream or lake, this may possibly give him some additional right; but his riparian rights, strictly speaking, do not depend on that fact.” Delaplaine v. C. & N. W. R. Co. 42 Wis. 214, 226, 227.
The above quoted portion of the opinion is quoted and approved in the case of McCarthy v. Murphy, 119 Wis. 159, 161, 162, 96 N. W. 531, wherein it is held that the riparian owner had the exclusive right to build piers and wharves in front of his land in aid of navigation, and might remove as a private nuisance a pier erected by any. other person.
“It is settled in this state that the riparian owner on navigable water may construct in front of his land, in shoal water, proper wharves, piers, and booms in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water. This is properly a riparian right, resting on title to the bank, and not upon title to the soil under the water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license by the public, is subordinate to the public use, and may be regulated by law.” Priewe v. Wis. State L. & I. Co. 93 Wis. 534, 547, 67 N. W. 918; Cohn v. Wausau B. Co. 47 Wis. 314, 322, 2 N. W. 546.
The right of the private riparian owner is subject to the paramount right of the public to navigate navigable waters. Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185.
A riparian owner on Chequamegon Bay may build docks from his shore t'o the line of navigable water. Northern P. L. Co. v. Bigelow, 84 Wis. 157, 54 N. W. 496.
“Docks, wharves, and public landings are essential to ■navigation, and highly favored in the law. The defendant, .as a riparian proprietor, may have had the right to construct this boom for his own benefit, if it had not interfered in such way with the free and unobstructed navigation of the waters •of the lake. When it does so interfere with the private and public right of navigation, then it becomes a private and public nuisance to be abated, and those who place them or maintain them there are liable in damages for any special injury.” Union M. Co. v. Shores, 66 Wis. 476, 479, 29 N. W. 243.
A riparian owner on the shores of a navigable inland lake whose property is valuable for pleasure resort purposes on account of its proximity to the lake and easy access to its waters for boating and fishing can maintain an action against other riparian owners for so drawing off the water of the lake as to lower its level. Cedar Lake H. Co. v. Cedar Creek H. Co. 79 Wis. 297, 48 N. W. 371.
Each owner of shore line on a navigable lake is entitled .as against other owners to his proportion of the line bounding navigable water for contact with navigation, and to a •direct course over intervening shallows to construct piers or •other structures connecting the shore" with such navigable line. Thomas v. A., S. & I. R. L. R. Co. 122 Wis. 519, 100 N. W. 993.
It would be illogical to hold that the riparian proprietor
Tbe fact that one of tbe boundary lines of a highway is a navigable body of water does not affect tbe riparian right of tbe abutting proprietor who owns tbe soil in tbe highway, except in that tbe right of tbe public to tbe riparian privilege for public purposes incident to navigation and, to navigable waters is paramount to tbe private riparian right. Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436; Bradley v. Pharr, 45 La. Ann. 426, 12 South. 618, 19 L. R. A. 647.
It is well settled by tbe foregoing authorities, as well as by others, that tbe public and tbe abutting owners each own an estate in a highway, and that tbe estate of tbe abutter carries tbe fee and tbe exclusive right' to use tbe same subject only to tbe public easement and what that easement carries witb it. It is as well settled that tbe abutter cannot unreasonably interfere witb tbe exercise of tbe public right. Whenever tbe abutter asserts a right and tbe public through its proper officers denies tbe existence of sucb right, we have a judicial controversy which is referable to tbe courts for decision. Tbe public or its representatives can no more undertake to finally decide it than it could undertake to decide a dispute which might arise over the boundary line of a highway. It would be intolerable to permit one interested party to a controversy to make itself a court, judge, and jury to pass on its own case when its biased and partisan decision would operate to deprive tbe individual of a valuable property right. It seems to be absurd to claim that tbe town board could in this ease proceed to bear, try, and determine it's controversy witb Lawler and forever conclude him by that determination. Tbe rights of an abutter in a highway are just' as sacred and just as much entitled to protection as is bis right in tbe adjoining field or as is any other property right. The one can no more be taken without compensation than tbe other. Our law,
Mr. Lawler proposed to dig this ditch over his own land for his own purposes. Whether he had land to the west of the-road is wholly immaterial, as I view the case. Whether he had the right to break the shore line in the construction of his ditch is also immaterial. If the shore line was left intact he might still construct and use his ditch, although it would not be as convenient for him as it would be t'o carry the ditch to the waters of the lake. The cases cited which recognize the right of an abutting owner to construct a ditch across a highway at grade enunciate no new principle. They correctly apply the general rule to specific cases of this nature. This general rule permits the, abutting owner to use property which is his for any legitimate purpose which will not unreasonably interfere with the public use. That a ditch may be so constructed as not to work such interference is not only a matter of common knowledge, but the courts uniformly, as far as I know, so hold. The only question here is, Would the proposed ditch create such interference ? and this is a question of fact which has been decided adversely to the appellants by the trial court on abundant evidence, and such finding has not been interfered with by this court.
Sec. 1346, Stats. 1898 (the so-called tunnel statute), confers no new right. It merely regulates the exercise of an existing one which the legislature can no more take away than it could take plaintiff’s entire parcel of land without compensation. There is no doubt' that the legislature has
While the trial court found as a fact that plaintiff owned land on both sides of the highway, there is nothing in the ‘decision to suggest that it deemed such finding to be vital to •the plaintiff’s cause of action, or that the judgment would have been different had the circuit judge reached the conclusion arrived at by this court. The authorities cited demonstrate that an abutting owner on one side of a highway only, may construct lateral ditches on the portion of the highway which he owns and may also use the subsurface of the highway for any legitimate purpose although his ownership ceases ■at the center line of the highway.
I cannot see how the question of ownership on both sides of the highway is of any importance in the case, unless it is held that the so-called tunnel statute (sec. 1346) confers rights on the landowner which he did not have at common law. This is not my view of the statute. However, inas-. much as the court has held that the plaintiff was not entitled to judgment because he did not own on both sides of the road, and has decided by inference at least that he would be entitled to judgment if he did own on both sides, I feel it my
I cannot escape the conclusion that the action of the court in reversing the findings of fact made by the trial judge is unusual and even extraordinary. I think so because I believe that these findings are not against the clear preponderance of the evidence, but on the contrary are supported by such preponderance. I shall now proceed to give the reasons why I think so. The evidence bearing on the question whether Lake Geneva forms the western boundary of the highway where it passes through Lawler’s land is of two kinds: surveys made in preparation for the trial of this case, and evidence aside from the surveys. I shall first consider the surveys.
In all, three surveys were made, one by an engineer, Mr. Teeple, assisted by another surveyor, Mr. Haskins, for the plaintiff; and two for the defendants, one by a Mr. Carlson and the other by a Mr. Powrie.
In reference to the qualification of Mr. Teeple, it may be said that he graduated from the mechanical engineering course at Cornell University in 1889, studied electrical engineering thereafter, taught electrical engineering in New Hampshire College for five years, then pursued engineering studies for two years at Harvard, and later did surveying for the Illinois Central Railroad for three seasons. His health
If it be assumed that he correctly located the point where the Norris survey crossed the north line of section 1, township number 1 north, of range 17 east, every surveyor who testified, including Professor Smith of the engineering department of the University of Wisconsin, testified that he pursued an absolutely correct method of relocating the line of the Norris survey. Briefly stated, Mr. Teeple’s method was this: He ran a random line on what he assumed to be the correct variation of the needle between two established points on the line of the Norris survey, to wit, from a point four chains south of the west quarter corner of section 12 to a point 125 links east of the north quarter corner of section 1. He then measured the distance from this latter point to the point where his random line intersected the section line and corrected his random line by properly proportioning distances.
Mr. Norris made two records and two plats showing the location of his survey on October 24, 1839. Both were filed by the county clerk. One was offered in evidence as plaintiff’s Exhibit 13 and the other as defendants’ Exhibit 3. Exhibit 13 was recorded. \
There were two differences between these exhibits. Exhibit 3 located one of Mr. Norris’ stakes at a point which was marked by a bearing tree fifteen inches in diameter, located one and five-sixths degrees west of north ■ from the stake and a distance of 1.51 links therefrom. In Exhibit 13 this distance is given as 151 links. This difference, did not affect the result in this case, and it is only of importance in determining which plat is correct. I do not think there can be any question that Exhibit 13 correctly shows the above measurement. The idea that a surveyor who was plodding through the swamps, oak openings, and prairies of what is now Wal-
The other difference between the records is material. Exhibit 3 shows a stake located on the Norris survey 1.25 links east of the quarter-section comer' on the north line of section 1 aforesaid, being also the south line of section 36 in township number 2. Exhibit 13 shows this stake to be 125 links oast of the quarter corner.
The Norris survey followed section lines from the southwest corner of section 26 to a point four chains south of the west quarter corner of section 12, a distance of two and a half miles, lacking four chains. There was no doubt as to the location of this quarter corner when the three surveys referred to were made. Mr. Teeple started his survey four chains south of this quarter corner, which was admittedly a correct point of commencement. He closed his survey 125 links east of the north quarter corner of section 1. Although both plats were in evidence, none of the surveyors made any contention that Mr. Teeple was not correct in so doing or that the survey should have been closed 1.25 links east of the corner. It' has been argued on the appeal, however, that the learned surveyors and the still more learned counsel for the defendants did not discover that there was any difference between the two plats until the case was appealed to this court. However unwary counsel may have been, we cannot assume that their surveyors were not keenly observant of their employers’ interests. They both had correct copies of Exhibits 3 and 13 long before they made their surveys, and it is not conceivable that they did not discover that there was a plain decimal point between the figures 1 and 25 in Exhibit 3. Neither is it conceivable that they did not regard the decimal point as an obvious error or as inserted to indicate that the measurement was 1 chain and 25 links. Much less can we presume that the court, which had both plats be
Eor convenience a copy of that portion of Mr. Norris’ plat showing the line of survey in dispute is herewith inserted.
Mr. Lawler owns a strip of land having a, frontage of 400 feet on Lake Geneva. This strip comprehends the north 300 feet of section 12 and the south 100 feet of section 1 adjacent' to the lake and extending east for some distance, and it is the location of the highway for a distance of 400 feet over this strip with which we are concerned. It is obvious that if Teeple’s closing point is 125 links east of the north quarter corner of section 1 when it should' be only 1.25 links, his survey swings too far to the east, and there is at least a narrower strip of land between the lake and the road where it passes over Lawler s land than the survey shows.
The questions for solution, then, ai’e, Was Mr. Teeple justified in assuming that Exhibit 13 and the record thereof correctly showed the point where the Norris survey crossed the north line of section 1 ? and Did the court err in deciding that the Teeple survey was substantially correct?
In the first place, Exhibit 13 shows fourteen measurements in all. Six of these show full chains and no links. Eight show chains and links both, but in no instance is any fraction of a link shown. Exhibit 3 shows but two measurements containing fractions of a link. One of these has already been discussed, and the manifest absurdity of locating a bearing tree to within one one-hundredth of a link has been alluded to. It is manifest, to my mind, that as to this measurement Exhibit 13 is correct, and that in Exhibit 3 a
- There is another obvious reason why the figures on Exhibit 13 are correct — a reason which the only surveyor for defendants who made a survey that could properly be called such, seeks to explain by saying in effect that Norris made a mistake in his survey. It will be noticed by a reference t'o the plat that the survey terminates nearly one half a mile north of the north line of section 1. The length of this piece of road as surveyed is 36 chains and 79 links. The course of the survey through section 36, commencing at it's south line, is as follows: North 21 degrees,. 10 minutes W., 6 chains and 79 links; from thence north 14 degrees and 12 minutes east; 21 chains; from thence north'27-degrees 55 minutes west, 9 chains to the north terminal point. Eunning this line bn the courses and distances given and starting at a point 1.25 links east of the north'quarter-post of section 1 would not only run it through the middle of a steep embankment twenty feet in height, but would run it into the lake at a point about 1,500 feet from said quarter-post. I have been unable to find any evidence in the record which contradicts: this. Following the Norris survey from a point 125 links east of the south quarter corner of section 36 would bring the center line of the road about fifty feet east of the top of this embankment.
Counsel very complacently assume that Exhibit 3 is correct and that therefore Exhibit 13 is incorrect, without a substantial fact to support such an assumption.
A good deal of attention has been devoted to the true location of the point where the Norris survey crossed the north line of section 1, because if Teeple did not determine the correct point of crossing, the accuracy of his survey would be materially impeached. To describe in detail the three surveys and point out' the weaknesses in each would consume considerable space.
The Carlson survey may be disposed of summarily. It was evidently made with one object in view, and that was to throw the road over so close to the lake that the latter would form the boundary line of the highway where it passed through Lawler’s land. The appellants neither justify nor claim anything under this survey, so nothing more will be said about it.
The appellants, however, do insist that the survey made by Mr. Powrie was made on correct principles, and that it is entitled to great if not controlling weight. Mr. Powrie made his survey on the theory that Norris in making his survey used the polaris or true meridian in running his lines. If Powrie was not correct in making this assumption, then his survey fails, and there is not a particle of evidence in the record to show that Norris used such meridian. It is just as logical to assume that Norris ran his line in accordance with the variation of the compass. All things considered, the latter is the more logical assumption of the two. • In any event, the entire Powrie survey is based on a hypothesis that may be correct or may be incorrect. That the hypothesis is not a correct one must be accepted as a fact, unless it be assumed that
So, while some doubt and discredit may be thrown on. tbe Teeple surrey, when we come to tbe surveys made by tbe appellants we find one of them absolutely worthless and the other based on what is in all probability an entirely wrong hypothesis. , |
Counsel criticise tbe Teeple survey because of tbe fact that it is outside tbe line of tbe traveled track for a considerable distance. This is true, and it is also true tbat tbe Powrie line is outside of tbe traveled track a much greater distance.
An attack is also made on tbe Teeple survey because in carrying it onto tbe map wbicb be made an error of ten feet was made at one point. Tbe error is immaterial as to any question involved in tbe case, and in so far as it would affect tbe credibility of tbe witness it is more than offset by the fact tbat Mr. Powrie made three mistakes in carrying tbe survey of tbe road as made by him onto bis map. Mr. Teeple was tbe only surveyor who made any attempt to find tbe monuments wbicb marked tbe survey made by Norris. These monuments were old and decayed and it is always possible tbat a mistake in reference thereto might be made. Teeple and bis asso
How, then, was there anything in reference to the Eorris line that the court had before it which would satisfactorily and even conclusively show which of the contentions was right? I think there was. It must be remembered that
In view of tbe evidence furnished by this plat and in view of tbe character of tbe testimony pertaining to tbe surveys; I am wholly at a loss to see bow a court could or can possibly reach' tbe conclusion that Mr. Norris adopted as tbe west boundary line of tbe highway at tbe place in dispute tbe ordinary high-water mark of Lake -Geneva. The Powrie and Carlson surveys throw tbe west line of tbe road actually into tbe lake. ' I do not of course contend that' the plat would be better evidence than tbe survey itself. What I do contend is that where a competent surveyor has made a survey wbicb corroborates tbe plat, tbe latter cannot be impeached by simply showing that another survey was made, when that other survey is based on an assumption wbicb there is neither proof nor presumption to support. -
No presumption can be resorted to in this case to tbe effect that tbe traveled track follows tbe center line of tbe road. We know from practical observation that this is not generally true of ancient highways, particularly where they were carried around obstructions. We know as a matter of fact that it is not true in this case if any attention whatever is to be paid t'o tbe Norris survey. That survey consists of a series of straight lines forming angles at tbe connecting points.
Defendants’ Exhibit 5, being a plat showing the Carlson survey, in the practical accuracy of which Powrie concurs, shows that the center line of the highway as it is claimed Norris surveyed it is in the lake from one to six feet at high water for a distance of 160 feet' through the Lawler land. It shows that such center line for a considerable distance is but from five to eight feet from the low-water line. This would throw the north line of the road from thirty-five to forty feet into the lake at high stage and from twenty-five to twenty-eight feet at' low stage. It requires an abiding faith in the infallibility of the defendants’ surveyors to believe that Norris located his road in any such way, particularly when he solemnly declared in the plat which he made that he did nothing of the kind.
The court does not hold that the trial judge might not have very properly found that the Teeple survey was correct, if the case was to be decided on the surveys. It does hold that the dispute in the testimony between the surveyors raiseá a question of doubt as to which survey is correct, and in effect' proceeds to disregard all of them and decides the case in defendants’ favor on other evidence offered. This evidence principally consisted of testimony tending to show the location of the fence on the east side of the highway where it crossed the plaintiff’s land, and also the location of a bridge over a creek on the line of the highway.
If the evidence of the surveyors creates a situation of uncertainty, that situation is not relieved by the testimony tending to show the location of the fence and the bridge. In the first place, it is fairly established by the testimony that the fence in question was not erected until more than twenty years had elapsed after the survey was made and the road was opened. Most of the witnesses who testified were familiar with the situation so far as fences were involved for a period of twenty-five years or less. One witness had an in
It is also said that Mr. Harris set a stake where his line crossed the creek, and that' the presumption would be strong that the bridge was built where the stake was set and that it really marked the center of the highway. This might be so if we assume that highway builders in that day were following air-line routes and that they preferred to have the highway built along the middle of the right of way rather than to take advantage of the topography of the country and build bridges in places within the right of way where they could be most conveniently constructed. The road builders were not obliged to follow the center line of the right of way, but could deviate therefrom if it was
There are some other minor considerations urged in support of the decision' of the court on the facts which I do not think I would he justified in discussing. I do not feel that the surveys should he so cavalierly set aside. Mr. Norris was evidently a competent surveyor. He describes accurately and concisely the line of his survey. The highway as constructed does not extend beyond the exterior boundary lines of the highway surveyed by Norris. He gives his courses and distances and there is no doubt about the location of the starting point and there is no great reason why his line could not be re-established. The probabilities are altogether in favor of the Teeple survey or the Powrie survey being correct. If either is correct, then the road does not follow the center line of the highway. In fact, if any reliance whatever can be placed on the Norris survey, the center line of the road did not follow that survey, but there was some deviation from side to side for convenience in building the highway, such deviation, however, not extending beyond the right of way.
As stated before, I think the trial court was correct in adopting the Teeple survey, and in any event this court should not say that the finding of the trial court is not sustained by the evidence.