105 Wis. 410 | Wis. | 1900
The existence and limits of the highway as adjudged to be obstructed depend upon finding 2, to the effect “ that for more than forty years last past there has been, and now is, a public highway running, , . . which said highway was at some time more than forty years ago dedicated and thrown open to the public by the owners of the adjacent property upon both sides thereof, and said
We next come to the consideration of the other portion of the finding, to the effect that the highway generally was dedicated, as distinguished from being laid out. This conclusion was undoubtedly reached by the trial court by dismissing from his consideration the record of survey of 1840, as counsel on both sides seem to agree. If he had given it effect as a record, establishing the fact that a road was laid out according to the course there described, the conclusion of dedication, of course, could not have been reached, for the acts done at the period specified in the finding — more
Upon examining the force of this record, we find that in 1840 the law vested the laying out of highways in the county board of commissioners. The procedure consisted in a petition presented to them by ten freeholders, with certain specified qualifications, and the appointment of three electors as viewers. The viewers were required to take an oath, to proceed to view the route proposed, and, if deemed by them of public utility, to lay out and mark such road on the ground. They were then required to make a certified report of their proceedings to the next ensuing session of the county board, when the same was to be publicly read, “ and, if no objection’s be made to such proposed highway, the said board shall cause a record thereof to be made, and order the said road to be opened and repaired a necessary width, not exceeding sixty-six feet, which shall thenceforth be a public highway.” Terr. Stats, of 1839, p. 107, § 6. The county of Racine was organized by the legislature in 1838, and the first meeting held April 2 of that year. As was to be expected in a new and sparsely settled but rapidly settling country, the question of the location of highways immediately became an important one, and, commencing with the meeting of June 25,1838, the petitions therefor became very numerous. The first indication in the records of the laying out of any highway occurs at the meeting of July 30, the records of which meeting disclose: “ A survey of the road from Southport to the United States road near the house of Jesse Foster was presented and approved. Also the survey of an alteration of a road south from Southport to the state line of state of Illinois, presented and approved.” Immediately following the record of this meeting appear recorded the surveys of these two roads. The first is simply the survey,
From this summary of the situation the conclusion seems to us irresistible that the formal entry of the survey of a road in this the recognized record book of Racine county, made by an official person, can have been due to no other
Even if this recorded survey were not sufficient to estaba lish the fact of a legal laying out, it would,, as. respondent
The legal opening or establishment of an ancient highway may also be proved by hearsay, or even by reputation. 2 Jones, Ev. §§ 304, 305; 1 Greenl. Ev. (15th ed.), § 128; Willey v. Portsmouth, 35 N. H. 303, 310; Webster v. Boscawen, supra. In the autumn of the same year as the survey, this road is recognized as a laid-out road having a definite location by the county board of the adjoining county of Walworth. Upon the creation of Kenosha county out of part of Racine county in 1850, it is recognized as one of the legal highways, and the survey record under consideration was included among the “ official highway records ” of the new county. In-1881 men working on the road declared its reputation as a legal highway with defined three-rod limits. In 1890, Mr. Reed, who had owned the land on both sides from 1880, declared the reputation of the highway as-one having legal limits substantially in accord with the survey, and ascribed that reputation to statements of the towjr officers. Finally, in 1894,. the town officers of Wheatland recognized it as a road having legal limits different from the course of travel where the same had been deflected to-
It being established that the highway in question, generally speaking, was not created by dedication, and that the exact locus in quo, being outside of said surveyed highway, was not dedicated in the original fencing out of the road more than forty years ago, the judgment cannot stand, unless it can be supported by some subsequent fact sustained by a preponderance of the evidence, as to which we have no finding by the court below to aid us. It is contended that the acts of the owner in changing the fence in 1868, followed by nearly thirty years of noninclosure and user, establishes either a dedication at that time, or establishes a right of occupancy for a highway by prescription. Respondent’s attitude as between these two positions is not very clearly defined. Dedication, as we have said, rests upon the intent of the dedicator. User alone is not sufficient to establish that intent, but must be accompanied by some act or acquiescence on the part of the owner. Elliott, Roads & S. 92; Angell & D. Highways, § 151; Gardiner v. Tisdale, 2 Wis. 194; Eastland v. Fogo, 66 Wis. 133, 135; Bates v. Beloit, 103 Wis. 90; Chicago v. C., R. I. & P. R. Co. 152 Ill. 561; Harding v. Jasper, 14 Cal. 642, 649. This, of course, does not mean that there must be in all cases direct evidence of an expressed intent, but that the events, among which long-continued user may be very important, create a firm
In considering the question of prescription, the element of consent is, of course, eliminated. The right of public highway by prescription is predicated upon adverse user so long continued as to imply a presumption, not necessarily of a grant, but of an original legal establishment of the high
By the Court.— Judgment reversed, and cause remanded, with directions to dismiss the complaint.