Nicolai v. Davis, 91 Wis. 370

Nicolai v. Davis

91 Wis. 370 | Wis. | 1895

Cassoday, O. J.

There was no error in admitting in evidence the certified copy of the order laying out the road in 1847. There was no objection to the form in which such copy was certified; but the objection was to any certified copy, on the ground that counsel wanted the original. Besides, the town clerk was subsequently sworn, and without objection testified to the effect that he was then such clerk, and as such had custody of the records of the town, and, referring to such copy, said: “ This is a certified copy of the original order. I took the copy of this order from the original. The original record is Kei'e. . . . The mark at the bottom of this m the booh, ‘ True copy,’ is the same on the certified copy.” The language is unmistakable, and to the effect that the certified copy was taken- from the original. If there was any objection to the form in which the copy was certified, it should have been specifically pointed out, so that the original, then present, could have been put in evidence.

Ever since 1868, that order has been “presumptive evidence of the facts therein stated, and of the regularity of all the proceedings prior to the making of such order.” E. S. sec. 1298; *373Williams v. Giblin, 86 Wis. 149. Such, presumption was not overcome by evidence. This highway appears to have been opened, worked, and traveled, substantially on the line on which it was so laid out, for more than forty-five years prior to this controversy. The mere fact that the plaintiff had for many years encroached upon the road by putting a portion of his fences in the road, and otherwise, did not bar the town from the legal right of having the road at any time opened to its full width as originally surveyed and laid out. Welsh v. Argyle, 85 Wis. 307; Childs v. Nelson, 69 Wis. 125; Reilly v. Racine, 51 Wis. 526.

Eights acquired against the public by adverse possession of a highway or street are the subject of a note to Mayer v. Graham (33 Neb. 566) in 18 L. E. A. 146.— Eep.

There was no error in excluding the opinion of a witness as to the necessity of straightening out the road at the point in question. The question involved was the legal right of the town to have the road so straightened, and not the necessity of doing it. Besides, it does not seem to have been a subject for expert testimony.

There was no error in excluding testimony as to whether the signers of the petition for removing such encroachments were taxpayers. ' As stated by the trial court, the town officials had the legal right to make such removal without such petition.

The findings seem to be fully sustained by the evidence.

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