138 Wis. 484 | Wis. | 1909
The errors assigned on rulings on evidence are not substantial and need not be discussed.
The third and fourth errors relate to the refusal of the court to grant a nonsuit and to direct a verdict. It is claimed that these motions should have been granted because the evidence offered by the state, at best, showed that the post nearest the traveled track, as the road was used when the posts were put in the ground, was three feet distant from such track, and constituted a mere encroachment on the highway and not an obstruction of it. There is evidence tending to show that the post was nearer than three feet to the traveled track, but we accept counsel’s argument as sound that inasmuch as the witnesses for defendant on this point testified from actual measurement, while those for the state testified somewhat indefi
“Most country roads have a narrow beaten track, but it does not follow that the use is confined to such path. Teams must pass each other, and for that purpose must necessarily depart from the main traveled track. So, when such track is muddy, public convenience requires departure from such track. We cannot hold that the public can acquire no legal right to such sides of the main traveled track by such ordinary user.”
Under the testimony it was a fair question for the jury to say whether the posts in controversy constituted an obstruc
Error is assigned because the court refused to give the following instruction:
“You are further instructed that if the defendant or his predecessors in title openly, notoriously, adversely, and continuously for a period of twenty years immediately preceding the commencement of this action occupied up to the line marked by the placing of the posts in question, then he had a right to place the said posts at the point indicated, and you should return a verdict in his favor.”
Without passing upon the correctness of this instruction as an abstract question of law, we fail to see how it was applicable to the facts proved on the trial. The defendant had the paper title to his land, as we understand the record. At least there was no controversy on that point. The public, if it had any right in the land where the posts were set, acquired its easement by user, by grant, by dedication, or by condemnation. It claimed right by user, although some circumstances were shown from which dedication might possibly be inferred as a matter of fact. In order that the instruction should be germane the evidence should show that the public at one time had acquired an easement by prescription or otherwise, and that after such right became vested in the public the land was -adversely occupied by the defendant and his predecessors for twenty years. We have been unable to find any such evidence. The state contended that fences were formerly maintained on the line now occupied by defendant’s fence. The defendant claims that the fence up to about nine
Error is assigned because the court instructed the jury as follows:
“The claim of the plaintiff is that the defendant on the 27th day of December, 1905, obstructed a certain highway known as the Packwaukee and Portage road, at a point specified, by setting some posts within said highway. The defendant admits the setting of some posts at the place mentioned at or about the time stated.”
The criticism on this instruction is that the court told the jury in effect that it was admitted that the posts were set in the highway. The jury could hardly misunderstand the import of the instruction. The court told the jury that it was claimed that the highway had been obstructed by placing posts at a point specified. There was no material dispute about where the posts were set, and when the jury was informed that it was admitted that the posts were set at the “place mentioned,” the latter words could only be understood as referring to the place where it was conceded the posts were, and which is referred to in the first part of the instruction as the “point specified.” The jury was instructed to find for the defendant “unless satisfied by a preponderance of the evidence . . . both that the posts or one or more of them set by the defendant were within the limits of the highway as it existed at the time, and that such of the posts or any of them, if any there were, as were within the highway endangered, impeded, or seriously inconvenienced travel on the highway.” In view of the instruction last quoted the jury could not have been misled by the instruction complained of, even though it be conceded that there is some ambiguity in the language used.
“In case of a bigbway by user tbe highway is founded upon a dedication by tbe abutting owners, which dedication is evidenced by twenty years of uninterrupted use by tbe public' openly, notoriously, and adversely.”
As an abstract proposition of law this instruction is not correct under the decisions of this court in Frye v. Highland, 109 Wis. 292, 299, 85 N. W. 351, and Randall v. Rovelstad, 105 Wis. 410, 426, 81 N. W. 819. Tbe presumption of a dedication is not necessary to support an easement acquired by tbe public by user. State v. Lloyd, 133 Wis. 468, 113 N. W. 964. Tbe instruction, however, was harmless. If there was a bigbway at tbe place in question established by user, it was immaterial for tbe purposes of tbe case whether tbe land, so used bad been dedicated by the owner or not.
Error is also assigned because tbe court instructed tbe jury as follows:
“In case a bigbway becomes established by uninterrupted use for twenty years, tbe uninterrupted maintenance for this period of a fence or other obstruction indicating tbe line to which tbe owner dedicates for public use fixes tbe fence or obstruction as tbe line of tbe bigbway.”
This instruction certainly is too broad. In new localities where land is cheap, fences are often built more with reference to tbe contour of tbe land than with reference to tbe usual, and customary limits of highways. Numerous instances could no doubt be found where tbe distance between tbe fences on either side of tbe bigbway is two or three times as great as the width of tbe ordinary road. To say in such a case that, after tbe lapse of twenty years, there is a conclusive presumption of law that tbe land between tbe fences has been dedicated to the public, is hardly reasonable. Tbe public has no use for such land for bigbway purposes, and tbe intention to dedicate to tbe public in tbe first instance was lacking.
It has been troublesome to determine with any degree of satisfaction whether the erroneous instruction was prejudicial to the defendant. If not, no reversible error resulted therefrom. The case was tried by attorneys, and perhaps jurors, who were apparently familiar with the locus in quo. Much of' the testimony is given with reference to objects entirely unfamiliar to this court. What we take to be an eighth line is. ref erred to throughout the testimony as a quarter line. Directions are not correctly stated. The printed case was prepared, in palpable violation of the rules of this court, the entire evidence in the form of question and answer being printed. This-fact, taken in connection with the ambiguous nature of the evidence in some particulars, has made it laborious and difficult to arrive at a satisfactory conclusion as to what was in fact proved by the testimony offered. There is evidence to show that a rail fence was built on the Neale side of the road in, 1864. The evidence does not show how long such fence was maintained, or when it was replaced, or where the new fence was built if the old one was replaced, or whether any considerable period elapsed after such fence fell into decay and before a new one was built. There is evidence tending to-show that some of the remnants of such fence are still discernible along the line where the defendant set his posts. There is also evidence that defendant built his fence a few years ago some distance further from the road than the rail
Other errors are assigned, but they are not likely to arise on a subsequent trial, and no useful purpose would be served by discussing them. Because of the error in giving the instruction under discussion the judgment must be reversed.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial. The clerk is directed to tax no costs for printing the case, because the same is prepared in manifest violation of the rules of this court.