Andrews v. Youmans
| Decision Date | 05 November 1890 |
| Citation | 47 N.W. 304,78 Wis. 56 |
| Parties | ANDREWS v. YOUMANS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.
The complaint alleges, in effect, that the plaintiff was the owner of lot 1 in block A of Youmans' addition to Mukwanago; that said lot fronts on Clarendon avenue in said village; that in November, 1887, and December, 1888, the defendant, without leave of the plaintiff, and against his protest, cut down, carried away, and converted to his own use, 14 shade trees standing in that half of said Clarendon avenue next to said lot, and in front of the same, for which the plaintiff claims $350 damages, and three times the amount thereof, by force of section 1345, Rev. St. The answer admits the cutting, but denies that the same was against the protest of the plaintiff, except as to five of said trees, and denies any damage to the plaintiff, or that the plaintiff had any right to said trees, and alleges that said Clarendon avenue was not, at the times mentioned, nor ever was, a highway, within the meaning of section 1345, Rev. St. It appears from the evidence upon the trial, in effect, that in July, 1886, the defendant agreed, verbally, to sell to the plaintiff a half acre of land, now constituting the lot in question, for $100; that the plaintiff thereupon went to preparing said lot for a cattle-yard; that a few weeks afterwards the plaintiff agreed to pay the defendant $12 more, and take the timber on said lot, which the defendant had previously intended to reserve; that the land thus bargained for was all inclosed by the plaintiff, and did not include any of the street afterwards platted; that October 8, 1886, the defendant surveyed and platted said lot and avenue, and other lands, as required by statute, and said plat was duly certified to, and was recorded, October 18, 1886; that, in pursuance of said verbal contract, the defendant conveyed to the plaintiff, by a warranty deed, said lot 1, October 20, 1886, which deed was recorded November 23, 1886; that the plaintiff built, maintained, and operated stock-yards on said lot, and that the defendant caused the trees to be cut in November, 1887, and December, 1888, as claimed. At the close of the testimony, and on motion of the defendant, the court granted a nonsuit, and, from the judgment entered thereon, the plaintiff brings this appeal.D. H. Sumner, for appellant.
T. W. Haight, for respondent.
CASSODAY, J., ( after stating the facts as above.)
All antecedent and contemporaneous verbal negotiations and agreements between the parties, respecting the purchase of the lot, must be regarded as having merged in or excluded by the deed from the defendant to the plaintiff executed and...
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...public easement therein? The plaintiff owns the fee in the highway, and the public has a mere easement across his land. Andrews v. Youmans, 78 Wis. 56, 47 N. W. 304;Wegge v. Madler, 129 Wis. 412, 109 N. W. 223, 116 Am. St. Rep. 953;Smith v. Beloit, 122 Wis. 396, 100 N. W. 877;Brown v. Barab......
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