State v. Lloyd

133 Wis. 468 | Wis. | 1907

MaRshall, J.

While a very long record is presented, it is believed that the foregoing brief statement exhibits the facts as established with sufficient clearness to warrant the trial court in holding that no jury question was involved. There was a scintilla of evidence here and there out of harmony with the general trend. The history of the subject involved extended over a period of some fifty-five years, part depending on declarations of deceased persons made some fifty years prior to the trial and much on recollection of events after the lapse of more than the ordinary span of a generation. On the whole there was in the judgment of the trial court, as it appears, nothing to materially vary with reasonable certainty the physical situation as clearly shown, and with that we agree.

We have not attempted in the statement to do more than give the general effect of the evidence, as we conclude the trial court properly viewed the case. Since it appeared that Mr. Yan Houten intended to have a way for public travel established through his land with the north and south eighth line as the center when the way was blazed and cut out and made usable in 1851; that one was laid out in 1853 with such intention; that a st-rip of land substantially of the proper width, including the way as used, with like intention, was partly before 1853 and partly a year thereafter fenced out hy Mr. Yan Houten, hut hy mistake it was located wholly west of such line; and with like mistake it was occupied, worked, and used hy the public as and for the highway as laid out for much more than twenty years; that though Mr. Van Hou-ten soon discovered his mistake he concluded not to rectify it except- at his pleasure and continued to use his land accordingly for more than twenty years and then refused to make any change and was not, nor was his grantee, interfered .with in that regard till 1905 — these propositions were presented for solution to the trial court: •

1. Is the way as fenced out, occupied, and used, by adverse possession, the legal highway, superseding the way as laid out, so far as the two do not coincide %

2. Is the way as fenced out, under the circumstances, the ■legal highway intended, by dedication ?

3. Did the occupation of the land on the east side of the highway as fenced out, up to the east fence, ripen into a right by adverse possession %

An answer to either of such propositions in the affirmative •is sufficient to dispose of the appeal.

It is considered that the first of such propositions must be ■answered in appellant’s favor. The learned trial judge seemingly decided to the contrary upon the mistaken theory that a highway cannot be established by adverse possession, or the mistaken theory, often advanced, that possession by mistake of boundaries, the intention being to claim up to or within the calls of some written instrument or up to some ascertainable but not ascertained ■ line, cannot ripen into a right beyond such calls or line. In other words, that a mistake of ■boundaries does not form a legitimate basis for adverse possession. There are expressions in some of the early cases supporting both of such theories, but the law as understood here •is now firmly settled to the contrary.

That a highway may be established by twenty years’ adverse possession is distinctly ruled by Chippewa Falls v. Hopkins, 109 Wis. 611, 85 N. W. 553. It was further there held, referring to Lemon v. Hayden, 13 Wis. 159, and Wyman v. State, 13 Wis. 663, that the use of a definite highway by tbe public for twenty years witb tbe assent of tbe owner is conclusive evidence of dedication, and the establishment of a highway in that way.

That occupancy up to a particular line, or between particular lines, continuing for twenty years as an owner or person having the right might so occupy the premises, whether by mistake or in good faith or in bad faith, creates a right by adverse possession, is ruled by Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Wollman v. Ruehle, 100 Wis. 31, 75 N. W. 425; Ill. S. Co. v. Bilot, 109 Wis. 418, 85 N. W. 402; Gil man v. Brown, 115 Wis. 1, 91 N. W. 227; Ill. S. Co. v. Bud-zisz, 119 Wis. 580, 97 N. W. 166; and many other cases.

As in this case the strip fenced out for the highway was unquestionably used for more than twenty years by the public as the true one, as before indicated, there can be no doubt under the authorities cited but that it became a highway by adverse use. The continued possession and use of the strip for the period mentioned raises the presumption that it was characterized by all the essentials of adverse occupancy, re-buttable only by proof of some circumstance inconsistent therewith, and mere mistake as to the true location, as the authorities indicate, is not sufficient. If one uses land of an-cther in any way which cannot be regarded as constructive possession by such other, the holding is adverse, and if continued without interruption for the statutory period it will ripen into an absolute right to the property. The question of the nature of the possession turns on whether there is a disseisin of the true owner. Such is the statute, see. 4207, Stats. (1898).

The principles stated are so fully discussed in the cases cited that we shall content ourselves with the foregoing brief reference to them and their effect.

It would seem that when a town for more than twenty years, pursuant to proceedings laying out a highway, opens one on a four-rod strip of land fenced out for that purpose and thereby gains a right by adverse possession to use that particular strip for such highway, it must in all reason supersede the laid-out way so far as the two do not coincide, as held in Almy v. Church, 18 R. I. 182, 26 Atl. 58; Matteson v. Whaley, 20 R. I. 412, 39 Atl. 754; Grube v. Nichols, 36 Ill. 92; Peoria v. Johnston, 56 Ill. 45; and other cases cited

to our attention by appellant’s counsel. That rule as to abandonment of such part of the land within the laid-out way not included in the way fenced out and used necessarily results from the one vesting in the public the right to the used way by adverse possession. It would be highly absurd to hold that notwithstanding the acquisition of a highway by such possession, satisfying all requirements intended to be met by the one laid out, lands outside thereof, within the limits of such laid-out way, may still be claimed for the public use.

It does not seem that the authorities cited to our attention relating to the capacity of a landowner to obtain a right to a portion of a laid-out highway by merely encroaching thereon, such as Nicolai v. Davis, 91 Wis. 370, 64 N. W. 1001, nor v cases involving the effect of mere deviations from the boundaries of a laid-out highway, such as Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819, nor cases involving the question of abandonment by nonuser of a platted city street before the time arrives when such street is wanted for public use, such as Reilly v. Racine, 51 Wis. 526, 8 N. W. 417, apply to the facts of this case, as we understand them. The highway as fenced out, worked, and used having become established by adverse possession, whether the owner of the land gained a right by adverse possession on his part to a portion of the laid-out way need not be determined. No question of mere deviation of public travel from the laid-out highway or abandonment by failing to open such highway is involved in the case.

No other question suggested seems to require attention. Tlie one discussed is conclusive. It follows that the judgment must he reversed, and the cause remanded with directions to dismiss the ease with costs.

By the Court. — So ordered.