125 Wis. 319 | Wis. | 1905
The principal inquiry in this case is whether the land which the respondent sought to take possession of is in fact a part of the_ highway or outside of its limits. It is established that the traveled track is within the limits of the highway as laid out and established in 1844, but it is •claimed by respondent that the fence on the west side thereof is about one rod west of the west line of such highway as originally surveyed and laid out, and to that extent encroaches upon his land. He admits that the highway was lawfully laid out in 1844, and a proper order made and filed ■as required by law, and that the order is sufficiently definite to comply with the law, and that the traveled track adjacent to his premises, ever since 1844, has been upon such highway as surveyed and laid out; but that in the building of fences on the lines of such highway slight deviations from the actual lines as surveyed were made, and that the fences were not originally constructed, nor since maintained, upon the lines of the original survey, but have deviated a few feet therefrom; that the use of such highway ever since its establishment has been in subordination to the original survey and not adverse to the owners of lands included within the fences as built inclosing said highway and not embraced within the original survey; that no rights have been acquired by the public beyond the limits of the survey of said highway as originally laid out and recorded in the order establishing the same. In short, the gist of the respondent’s argument is that a lawful highway was laid out and recorded in 1844 and used and traveled as such ever since, but that the fences inclosing the same were not constructed.upon the lines of the •survey but varied in places from the true lines, and on the west side thereof encroach upon his premises a few feet; and that although such fences have been maintained for upwards
From the view we have taken of the case it becomes unnecessary to consider the question of whether there was a highway by user or dedication within the limits of the fences-inclosing the same. The court below found that, upon petition duly made and filed for the laying out of the highway, the supervisors met and caused a survey of the proposed road to be made, and incorporated the same in an order signed by them, and by such order duly laid out a highway as prayed for in the petition, which order was duly recorded in the-office of the town clerk in December, 1844, and that said public highway has been since used, traveled, and worked as-such, and substantially fenced, for thirty years. The respondent concedes that the highway in question was lawfully-laid out, and ever since has been a lawful highway, but contends that the fence encroaches upon his land, and that, even though the encroachment has continued for thirty years or more, still the appellant had acquired no rights by user or dedication. We are convinced there was not sufficient evidence to warrant the court below in finding that the fence-was not maintained upon the line of the original survey. Upon the facts proved it is established that the highway was-located and has always been maintained upon the original survey, and it is therefore unnecessary to consider whether-the appellant acquired any rights outside of' the original sur
By the Oowb. — The judgment of the court below is reversed, and the cause remanded with instructions to grant the injunction prayed for in the complaint. •