Sicchio v. Alvey

• Decision Date: 07 June 1960
• Citation: 103 N.W.2d 544,10 Wis.2d 528
• Parties: Rosario SICCHIO et al., Appellants, v. Edward ALVEY et al., Respondents.
• Court: Wisconsin Supreme Court

Page 544

103 N.W.2d 544

10 Wis.2d 528

Rosario SICCHIO et al., Appellants, v. Edward ALVEY et al., Respondents.

Supreme Court of Wisconsin.

June 7, 1960.

O'Melia & Kaye, Rhinelander, for appellants.

Everis H. Reid, Hurley, Wright & Zinn, Ironwood, Mich., of counsel, for respondents.

FAIRCHILD, Justice.

1. The 'unplatted alley' claim. The complaint alleged that an improved driveway, 20 feet wide, extended north and south across all five lots. No witness, however, testified to the existence at any time of a driveway which completely fulfilled that description. A number of witnesses did testify that they, or others, had driven back of these buildings for various purposes; some that there were more or less defined tracks, and some placed the date as early as 1906. Plaintiffs' brief asserts that 'The wholly uncontradicted evidence is that since prior to 1910, the public and businessmen used an unplatted alley across the rear of Lots 1-5.' The circuit court, and we do not find it so.

The circuit court was convinced that there could have been no driveway across all the lots before 1939 because of the existence of physical obstructions. These were the Northern hotel building on Lot 1, and the fence which enclosed the basement of this building after it burned, and until 1927, a fence which ran from the rear of Shea's tavern located on the south half of Lot 3 to the east lot line. Two maps as of 1922 and 1929 were admitted in evidence by stipulation. It was agreed that the maps show generally the location of buildings, but plaintiffs did not concede that they were accurate as to 'dimensions of the buildings and the accuracy of their placement as far as the lot lines are concerned.' Both maps indicate that the hotel building extended to the east line of Lot 1. Several photographs were in evidence. These were pictures of Mr. Shea and his dogs, and were taken in the back yard south of the fence referred to. Witnesses identified the buildings in the background, and the hotel building appears to have extended much farther east than the buildings on the other lots. There was testimony that Shea's building burned in 1925 or 1926, but there was also testimony that the conditions shown in the picture existed in 1927. It is perfectly clear from the pictures and the testimony that there was no driveway crossing Lots 1, 2, 3, and 4 when the pictures were taken, and the maps, although not qualified as accurate for all purposes, the photographs, and the testimony when taken together support the court's finding that the hotel building extended to the east line of Lot 1, or at least close enough to prevent passage across Lot 1 by vehicle.

Perhaps those who drove back of these buildings in the early years followed a route partially, or wholly across the unnumbered portion of Block 1 to the east of the five lots. The record unfortunately does not disclose the character of that land, nor the improvements upon it. It does appear that since 1943 or 1944, plaintiffs have owned the part of the unnumbered portion which lies just east of Lots 2, 3, 4 and 5.

2. Plaintiffs' claim of easement by prescription as owners of the north half of Lot 3. There was no evidence locating the claimed driveway by measurement with respect to lot lines, or improvements. Two recent photographs taken at the rear of defendants' hardware store, looking south, show the way which has been used for some time by vehicles, and which defendants obstructed prior to the commencement of this action. We can see that it is dirt or gravel, shows wheel marks, and passes immediately east of defendants' building, immediately west of a building to the south, which we can guess is on the rear of Lot 4, and apparently reaches highway 51 by passing east of a building on Lot 5. Defendants obstructed this passage in 1956. Plaintiffs first acquired the north half of Lot 3 in 1938. From 1926 to 1938 both properties, the north half of Lot 3 and the south half of Lot 3, and the north 20 feet of Lot 4, were owned by Rugee. Any actual use he made of a driveway across the south half of Lot 3 and the north 20 feet of Lot 4 in connection with his use of the north half of Lot 3 was as owner of both tracts. No easement could arise therefrom, and the period of prescription could not commence to run until plaintiffs acquired their title in 1938. Miller v. Hoeschler, 1905, 126 Wis. 263, 267, 105 N.W. 790, 8 L.R.A.,N.S., 327; Tarman v. Birchbauer, 1950, 257 Wis. 1, 5, 42 N.W.2d 158.

3. Plaintiffs' claim of easement by prescription as owners of part of Lot 2. Plaintiffs acquired a portion of Lot 2 in 1946. Attorney Flandrena became familiar with that parcel in 1927, owned it from 1930 to 1934, and he, or his mother, had some interest in it until 1946. There was a barber shop located on this parcel. Donald Welch was the barber from 1923 to 1936, and Gordon Thompson from 1936 to 1938 or 1939. All three were witnesses, called by the plaintiffs.

Mr. Flandrena referred to a 'private driveway that went from Lake Street to the alley in the rear of the barber shop.' The wood supply for the barber shop was unloaded at the rear, but he did not know which route the wagons followed to get there. He said there was 'a sort of L-shaped driveway. That is you could come in from No. 51 to the rear of the barber shop. Then you could come along the barber shop and come out on Lake Avenue.' He said: 'The road at the rear of the property we owned was--oh, you could not say it was a regularly-traveled piece of road. It was partially lawn, but I know that there was deep ruts in there whenever a heavy load went through.' He said that the tracks were not over the width of the usual wagon trail, and that he did not remember whether the trail took a straight course from Lot 2 to highway 51, or whether it curved.

Welch testified that before 1926 Shea's fence prevented access from the south, but that after the hardware store was built on defendants' property, there was such access to the rear of the barber shop. He customarily hauled wood across these lots four times each winter, and used the passageway daily for his truck with minnow bins in it. He testified that bootleggers used the driveway 'in pursuance of their illegitimate business.' He considered it to be seven or eight feet wide, and a 'straight shot' south from his lot to highway 51.

Thompson, however, who occupied the shop within 20 years prior to the date defendants obstructed the driveway, testified that the man who delivered wood to the barber shop while he occupied it would back up from Lake street between the barber shop and the Northern hotel property. He said there was a trail across the back of Lots 2, 3, 4 and 5, but he would not call it a driveway, and did not use it. He said that there was an ice house back of plaintiffs' property, and that people would use the trail when filling that ice house, but would approach from the south, and that some used it in making business deliveries to plaintiffs' property or to the hardware store.

Stanley Kountney, called as a witness by the plaintiffs, operated a snow plow for the town from 1927 to 1945, and up to the time of trial, he was engaged in business performing various kinds of mechanical services. While operating the plow, he occasionally plowed snow in the back yards of these buildings so that ice could be put up in the ice houses located at the rear. In the course of his business, he occasionally crossed the area in summer. He said it wasn't a road. It was a yard. There was grass in places, and there was not much travel. He did the snow plowing when asked by owners of the properties, or when asked by a member of the town board, especially near election time. He said the driveway was six or seven feet wide, about the width of the snow plow, and the condition did not exist continuously from 1927 to 1945. At times there were obstructions. Sometimes it was necessary to move a fence to get in with the snow plow. He said: 'I wouldn't call them driveways. * * * It was just going through back yards in back of the buildings.'

The circuit judge, in his oral opinion at the close of trial, pointed out Thompson's testimony that when he occupied the barber shop, he had made no use of any right of way, and that the people who, during that period, came in from the south did not reach Lot 2. Accordingly, there was a gap in the use of the trail or driveway for the benefit of Lot 2 during the period from 1936 to 1938, and the circuit court correctly concluded that plaintiffs had not...