Bino v. City of Hurley

• Citation: 14 Wis.2d 101,109 N.W.2d 544
• Parties: John BINO, Sr., et al., Appellants, v. CITY OF HURLEY, Respondent.
• Decision Date: 06 June 1961
• Court: United States State Supreme Court of Wisconsin

Page 544

109 N.W.2d 544

14 Wis.2d 101

John BINO, Sr., et al., Appellants, v. CITY OF HURLEY, Respondent.

Supreme Court of Wisconsin.

June 6, 1961.

Action by the plaintiffs John Bino, Sr., and Mary Bino, his wife, to recover damages from the defendant city for the act of such city in removing a gate from the plaintiffs' land, and to perpetually enjoin the city from dismantling or removing any replacement gate which the plaintiffs may erect across a certain private roadway located on their premises. The defendant counterclaimed for a judgment declaring such roadway to be a public highway, and perpetually restraining the plaintiffs from interfering with the free and unobstructed use thereof by the city and the public.

The plaintiffs since 1938 have owned all but two acres of an eighty acre tract of cutover land lying within the city limits of the defendant city, which tract borders both on Lake Lavina and U. S. Highway 51. The roadway in question extends from highway 51 to the city water pumping station located near the shore of the lake, the length of the same being slightly in excess of 1,800 feet or one-third of a mile. A spur branches off part way to the pumping station, which spur leads to the lakeshore. Such roadway has been in existence since 1890.

From 1890 to 1924 the roadway was used by people who wished to make use of the lake and adjacent shore for picnics, bathing, boating, and fishing. After 1900 the owners used such roadway in hauling ice which had been cut from the lake during the wintertime. Up until 1924 the only building located on the lands now owned by the plaintiffs was an ice house.

In 1924 or 1925 a predecessor in title to the plaintiffs conveyed two acres of land to a water utility company which erected a water pumping plant thereon in order to pump water from Lake Lavina with which to supply the defendant city. According to the records in the office of the Public Service Commission the city took over the direct operation of such water utility in 1935, and thereafter has continued to operate it. During such time the city has graded the readway leading to the pumping station, has removed brush from the sides thereof, and has plowed snow therefrom during the wintertime. The spur was not included in such operations.

Since 1936 the lands owned by the plaintiffs have been inclosed by fences, and also since 1936 at various times cables and gates have been placed across this roadway at different points for the purpose of keeping horses from straying off the premises. In 1939 the plaintiffs erected a gate at the entrance of the roadway at highway 51, which gate remained in place for several years when it was accidentally damaged. The city replaced it with a gate which remained in place until 1949. In 1958 the plaintiffs erected another gate at this same location. It was the removal of such gate by the city which precipitated the instant action.

Since 1924 other buildings were erected on the premises by a sportsmen's club organized for tobogganing and skiing. Such buildings were hardly more than shacks, although at one time a couple of families resided in them prior to 1938. At least one of such families paid rent to a predecessor in title to the plaintiffs. Apparently since the plaintiffs acquired title in 1938 no one has resided on the premises.

Because of using the waters of the lake for its water supply, the city in 1925 passed an ordinance which prohibited anyone from using the lake for bathing, boating, or fishing purposes. This was the ordinance before the court in Bino v. City of Hurley, 1956, 273 Wis. 10, 76 N.W.2d 571, 56 A.L.R.2d 778. The passage of such ordinance greatly reduced the subsequent use by the public of the roadway.

The action was tried to the court without a jury. The trial judge filed a memorandum opinion in which it was determined that no public highway had been established by user, but that one had been created with respect to the roadway, not including the spur, under the provisions of sec. 80.01(2), Stats., by reason of the city having performed work on such roadway for ten years or more. Findings of fact and conclusions of law were entered in accordance with such memorandum opinion. One of such findings found that the value of the gate removed in 1958 by the city was not in excess of $25.

Under date of September 8, 1960, judgment was entered determining that the roadway, without the spur, was a public highway, and perpetually restraining the plaintiffs from obstructing, interfering with, or preventing the city, or the public, from the free use thereof. From such judgment the plaintiffs have appealed. The city has filed a motion for review with respect to the determination that no public highway was created through user of the roadway and spur.

Clarence V. Olson, Ashland, Norlin & Spears, Washburn, for appellants.

Schmitt, Wurster & Tinglum, Merrill, James E. Flandrena, City Atty., Hurley, for respondent.

CURRIE, Justice.

The two issues presented on this appeal are:

(1) Was a public highway created under sec. 80.01(2), Stats., with respect to the roadway by reason of work done on the same by the city for a period of ten years or more?

(2) Was a public highway created with respect to such roadway, including the spur, through adverse user?

Public Highway Under Sec. 80.01(2), Stats.

Sec. 80.01(2), Stats., provides in part, 'All highways not recorded which have been worked as public highways 10 years or more are public highways, * * *.' (Italics supplied.)

The two acres of land conveyed by the former owner to the water utility company in 1924 or 1925 was landlocked with no access to the public highway, assuming the existing roadway was a private road and not a public highway. Therefore, an easement to use such existing roadway as a means of access to, and egress from, such two acre tract would be implied to have passed to the grantee utility company because such right of way was one of necessity. Sicchio v. Alvey, 1960, 10 Wis.2d 528, 538, 103 N.W.2d 544, and Bullis v. Schmidt, 1958, 5 Wis.2d 457, 461, 93 N.W.2d 476. The city, as successor in title to the utility company, succeeded to its easement rights. Inasmuch as such easement is appurtenant to land held by the city in its proprietary capacity, the easement is held in like capacity.

The use of a way of necessity is permissive and not adverse, and cannot constitute the foundation of a prescriptive easement. 1 Thompson, Real Property (perm. ed.) 712, sec. 432; Waubun Beach Association v. Wilson, 1936, 274 Mich. 598, 265 N.W. 474, 103 A.L.R. 983. Furthermore, one entitled to use a private way has the right to make reasonable repairs and improvements thereto so long as he does not increase the burden on the servient estate. Knuth v. Vogels, 1953, 265 Wis. 341, 345, 61 N.W.2d 301, and cases cited in Anno. 112 A.L.R. 1303. Indeed, if such roadway was not a public highway, the city as owner of the right of way would be obligated to maintain if, if anyone were so obligated. Holt v. Wissinger, 1958, 145 Conn. 106, 139 A.2d 353.

Therefore, the city in its operations in improving and maintaining the roadway was merely doing that which any private owner of an easement of way would have a right to do. We cannot believe that the legislature in enacting sec. 80.01(2), Stats., ever intended the absurd result that a municipality, in the position of the city here, could convert into a public highway its previous existing easement of way by carrying on works of improvement and maintenance over a ten year period. There would be nothing in such activities of the city which would apprise the plaintiff owners that a private way was being changed into a public highway. Town of Minocqua v. Neuville, 1921, 174 Wis. 347, 353, 182 N.W. 980, and State ex rel. Lightfoot v. McCabe, 1889, 74 Wis. 481, 484, 43 N.W. 322. The statutory words 'highways not recorded' are ambiguous. In view of this we should adopt an interpretation that will avoid such an absurd result as that contended here by the city. State v. Surma, 1953, 263 Wis. 388, 395, 57 N.W.2d 370. Therefore, we determine that the existing roadway, over which the city's easement of necessity extended, was not a 'highway not recorded' within the meaning of sec. 80.01(2), Stats.

This will require a reversal of the judgment below unless the city is entitled to prevail on its motion for review grounded on the premise that the roadway and spur had been established as a public highway by user.

Public Highway Created by User

The learned trial court determined that up until 1924 or 1925, when the easement by necessity was created with respect to the roadway, there had been no highway created by user. The memorandum opinion relied upon State v. Town Board, 1927, 192 Wis. 186, 212 N.W. 249. In that case this court through Mr. Justice Owen declared in 192 Wis. at page 194, 212 N.W. at page 251:

'It must be admitted, though we do it with regret, that there are other cases decided by this court which seem to hold that the mere naked user of a road for twenty years is sufficient to establish such road as a public highway. Chippewa Falls v. Hopkins, 109 Wis. 611, 617, 85 N.W. 553, and cases there cited. We can but regard the doctrine of those cases as unsound. They ignore entirely the very fundamental proposition that the user must be adverse or under such circumstances as will give rise to a presumption of an intention on the part of the owner to dedicate the road as a public highway. Those cases were not followed in Bassett v. Soelle, 186 Wis. 53, 202 N.W. 164, where the doctrine was recognized that the use must be under such circumstances as to give rise to a presumption of an animus dedicandi on the part of the owner.' (Emphasis supplied.)

We fully approve such quoted statement. There is no evidence in the instant record of any circumstances evidencing an intention on the part of the owners prior to 1924 to dedicate the land occupied by the roadway as a public...