Tomlinson v. Wallace

| Wis. | Jun 15, 1862

By the Court,

Dixon, C. J.

The statute of 1849, chap. 16, sec. 80, continued under the present revision, chap. 19, sec. 85, that “ roads not recorded, which shall hereafter be used ten years or more, shall be deemed public highways,” is essentially a statute of limitation, under which the owner of land loses his right to compensation, if it has not been made, by acquiescence in the public use for the period prescribed. By his neglect to prosecute or assert his claim in some proper form, he admits that he has none, and the easement becomes effectual in the public. A sufficient time being given him for that purpose, it is no violation of the constitution. Knox vs. Cleveland, 13 Wis., 245" court="Wis." date_filed="1860-01-02" href="https://app.midpage.ai/document/knox-v-cleveland-6598333?utm_source=webapp" opinion_id="6598333">13 Wis., 245.

The same is true of the act of March 10th, 1857, which declares that “all highways laid out by the supervisors of any town and recorded, any portion of which shall have been opened and worked for the term of three years, shall be deemed to be and are hereby declared to be legal highways so far as they have been so opened and worked, notwithstanding the statutes may not have been in all respects pursued in laying out the same.” Laws of 1857, chap. 19.

In order to establish the limitation under the latter act, the records of the highway in controversy were properly admitted; and it was not necessary for the defendant as matter of preliminary proof or otherwise, to show that the statute “ had been in all respects pursued in laying out the same.” He was not bound to show that the survey followed the precise route named in the petition ; that the proper notices were given of the time and place for the meeting of the commissioners, to act upon the petition; or that theiy met pursuant thereto; nor that there was an appraisement of damages or compensation made to the land owners. The act, though prospective in its operation, 11 Wis., 422" court="Wis." date_filed="1860-06-04" href="https://app.midpage.ai/document/state-v-atwood-6598137?utm_source=webapp" opinion_id="6598137">11 Wis., 422, applies as well to highways laid out and recorded and opened and worked, before its passage, as after, and these objections wore waived and put at rest by the lapse of the time in which they could have been properly raised.

If the plaintiff desired to exclude the proof, that he had leased to the defendant the quarter section beyond the eighty upon which the trespasses wore laid, and that there was no way of reaching the former, except by crossing the latter, for the reason that no such ground of justification was alleged in the answer, he should have objected to it when it was offered. Instead of that he allowed it to come in, in silence, and now the question not appearing to have been made below, seek to reverse the judgment upon exceptions'to the instructions of the-court, founded upon the evidence thus received. It is obvious that such a practice cannot be tolerated ; that suitors are not to be snared in this way. Admitting the question might be raised upon the instructions, which we do not decide. Yet to be made, and to be available here, it should appear that it was distinctly made at the time the jury were charged.

These observations, we believe, dispose of the material points relied upon as error. The criticisms of counsel upon the Ian-guage of the instructions, as to the highway, might have deserved more serious consideration, if the questions had been made below by specific exceptions, or by more accurate instructions asked and refused. As the instructions are not altogether erroneous, and the exception is general to the charge and every part thereof, no advantage can now be taken of it. It was proper for the judge under the statutes above referred to, notwithstanding the informalities which may have intervened in the laying out of the highway, to submit the question of its legality to the jury, on the record and the evidence before them as to its having been opened and worked. And the answer to the question put by the juror, must be taken as modified by the previous instructions, which, if not entirely accurate, would undoubtedly have been made so upon specific objection by counsel.

Judgment affirmed.