Neff v. Paddock

26 Wis. 546 | Wis. | 1870

Cole, J.

It appears that the highway in question was surveyed by the town authorities in 1852. The witness Brown says, that as county surveyor he surveyed the road running north and south through the section at that time. He first found the quarter post according to the government surveys in the north line of the section, and ran thence southward to the quarter post in the south line of the section. He then found the quarter post in the east line of the section and run thence west to the quarter post in the next line of the section. In this manner he ascertained the subdivision of the. section according to the original surveys, and surveyed the road through the center of the section. And the evidence clearly shows that the road as thus surveyed has been used by the public since 1852.

Now, it is entirely clear that this survey, made according to the original government survey, must control as to the subdivision of the section. The surveyor found the quarter posts, the permanent monuments established by the government to fix the division line between the east and west half of the section. This line must govern, whether it is in fact equally distant from the east and west line of the section, or not. Eor this court has decided that where lines can be run from well ascertained and established monuments fixed by the government surveys, they will control in the division of lands. Jones v. Kimble, 19 Wis. 429; Martin v. Carlin, id. 454. The survey made in 1864 can have no legitimate bearing upon the questions involved in the case. The parties were concluded by the original government survey. The rights of purchasers according to these surveys cannot be affected by the subsequent survey made under the authority of an act of the legislature.

This being so, there is very little left of this case. The plaintiff’s boundary line on the west is to be determined by the survey of 1852, and not by that of 1864. And, according to the former survey, he moved his fence nearly to the center of the highway as it had been used for more than ten years. Furthermore, parties through whom the plaintiff claims title built a fence in 1860-on the east side of the highway as originally laid out, thus acquiescing in the use of the premises as a highway.

The court in effect instructed the jury, that if they found that the fence erected by the plaintiff in the highway extended more than six feet from the east line of the road into the same so as to endanger or inconvenience travel thereon, then it was the duty of the supervisors to cause the fence to be removed, doing no unnecessary damage; and that such action on their part was lawful. The plaintiff removed his fence into the middle of the highway, and by so doing committed a nuisance. It was the duty of the supervisors to cause the fence to be removed summarily. The public have the right to an uninterrupted passage along a highway for themselves and carriages; and it is the clear legal duty of the supervisors to cause all obstructions to be removed which seriously interfere with or impede the exercise of this right. It would be a most serious defect in the law if, in the case of a palpable obstruction .of a highway, which interrupts its use and discommodes and endangers the safety of travelers, the public authorities had not the right to remove it without delay. We do not think that such is the state of the law in this state. Lemon v. Hayden, 13 Wis. 159; Wyman v. State, id. 663; Wetmore v. Tracy, 14 Wend. 250.

This disposes substantially of all the questions arising upon the record.

By the Court. — The judgment of the circuit court is affirmed.