118 Wis. 1 | Wis. | 1903
There are but two questions in this case, and they both questions of fact. .They are, first, whether the trial court’s finding that the McKesson survey was correct is sustained by the evidence; and, secondly, whether the finding that the road in question was laid out a three-rod road is so sustained.
The first question involves a very large amount of conflicting evidence, primarily that of two surveyors as to the relative accuracy with which they measured angles and distances in running the survey, and with reference to the various confirmatory signs discovered upon the ground, consisting of fences, indications of ancient travel, topographical conditions likely to have been considered in selecting the original highway, and specific monuments mentioned in the original survey. Of course, upon such conflict the finding of the court must stand, unless it is so opposed to the great and clear preponderance of the evidence as to lead us to the conviction that the court must have erred in applying rules of law, or through mistake or other reason failed to give proper consideration to the evidence. As to the accuracy of the methods of survey followed by the respective surveyors, we certainly are not able to say that either so overwhelmingly preponderates over the other; and when we pass to the physical facts as confirmatory of the one or the other we find some of them strongly supporting the McKesson survey. Immediately at the point in dispute the fences, especially on the south side of the road, and the line of travel, have been so various and indiscriminate
As to the second question, namely, the width of the highway as originally laid out by the county commissioners of Racine county, we are first confronted with a statute — sec. 5, No. 24, p. 33, Terr. Laws of 1840 — in force at the time that the highway in question was surveyed. That statute provides :
“The established width of all territorial, town, and county roads shall be sixty-six feet, and the line, run by surveyors, shall be the center of the road, unless otherwise described in the .return.”
Conceding that it would have been within the. power of the county commissioners to have laid this road only three rods wide, this statute raises a conclusive presumption to the contrary, unless the return of the commissioners showed that fact. That entire return, as stated in the Rovelstad Case, is not accessible — merely the survey; and it is not impossible that extrinsic evidence might suffice to establish that it did provide for a three-rod road. The only evidence offered, however, is location of the fences, and some attempt to prove reputation. The evidence as to location of fences is that at the present time they vary from seventy-eight links to ninety-three links apart, there being no very marked persistency to either width, although it is stated that the average is nearer three rods than four. It is, however, made apparent — as, indeed, common knowledge would suggest — that the present fences are nearer together than the ancient ones; that is, as old fences have worn out, or for other reasons been changed, the new ones have been crowded further into the highway, and there is an intimation that at certain places, about ten years ago, certain farmers moved fences from approximately the four-rod line to approximately the three-rod line, in pursuance of a contention that the road was only three rods, although at that time
The attempt to prove reputation quite completely failed. Substantially every witness whose memory reached back prior to a period of dispute — about 1890 — frankly declared that there was no general reputation; that the road was claimed to be four rods as frequently and as vehemently as it was claimed to be only three rods in width. We are therefore constrained to the were that the trial court erred in this finding of fact. Either he failed to give to the statute of 1840 its full force, or he must have misapplied the evidentiary effect of the fences which encroached beyond the four-rod line without reaching the three-rod line. We are satisfied that the evidence is not sufficient to defeat the effect of the statute, and that Ave must presume, in deference thereto', that this highway was legally laid out at a width of four rods.
The result of the conclusions above reached is that the fence in front of plaintiff’s premises, parallel to the course of the
That portion of the judgment, also, which enjoins the defendants from molesting or interfering with any structures of the plaintiff allowing only for a public easement of a three-rod road along the line of the McKesson survey is erroneous to the extent of one half rod. Such injunction must be limited so as to allow for a public easement of four rods, instead of three rods.
By the Court. — The judgment appealed from is modified by deducting $15 from the amount of damages awarded thereby, and by limiting the injunction to interference with fences, buildings, or other structures of the plaintiff upon the premises in the judgment described, allowing for a public easement of a four-rod road along the northern boundary thereof. As so modified, the judgment is affirmed. Appellants will recover costs in this court.