Baier v. Schermerhorn

• Decision Date: 21 May 1897
• Citation: 71 N.W. 600,96 Wis. 372
• Parties: BAIER v. SCHERMERHORN.
• Court: Wisconsin Supreme Court

96 Wis. 372

71 N.W. 600

BAIER

v.SCHERMERHORN.

Supreme Court of Wisconsin.

May 21, 1897.

Error to circuit court, La Crosse county; O. B. Wyman, Judge.

Action by Richard Schermerhorn against August Baier. Judgment for plaintiff, and defendant brings error. Reversed.Bleekman, Bloomingdale & Bergh, for plaintiff in error.

C. L. Hood, for defendant in error.

CASSODAY, C. J.

This action was originally commenced in justice's court by Schermerhorn for the unlawful obstruction of the public highway described, by Baier, December 5, 1894, whereby he was obliged to turn back with his team, to his damage. Baier answered by way of a general denial, and further specifically denied that the locus in quo ever was a public highway, or any highway whatever, and alleged that at the time mentioned he was the owner and lawfully in possession of said lands and premises, and that at the time mentioned Schermerhorn was wrongfully and unlawfully trespassing upon his premises. Upon such plea of title the cause was, under the statute, duly certified to the circuit court, where it was tried, and at the close of the trial the jury returned a special verdict to the effect that the road in question had been used and worked as a public highway through and across the land of Baier continuously for the period of 10 years immediately prior to December 5, 1894, and was laid out by the supervisors, and the order laying out the same was recorded November 5, 1860; that that part of the road at the gate in question was thereafter opened and worked for the term of three years; that the road at the gate in question was opened, traveled, or worked within four years after it was so laid out by the supervisors; that after that period it was worked and opened up to the present time; that the highway in question across the premises of Baier was not entirely abandoned as a route of public travel, and no highway tax expended thereon, during a period of five years, at any time since it was so laid out, and prior to December 5, 1894; that Schermerhorn did not have a practicable route, by which he could reach his land in question, otherwise than by going through or across the land of Baier; that Schermerhorn sustained special damage in December, 1894, different in character from that sustained by the public in general, by reason of the maintaining of the gate in front of Baier's house, and assessed such damage at $1; and that they found for Schermerhorn. Thereupon judgment was entered upon such special verdict in favor of Schermerhorn accordingly, to reverse which Baier sues out this writ of error.

We cannot dismiss this writ of error merely because Baier had another remedy, by appeal and certificate of the trial judge, under chapter 215, Laws 1895. Counsel gives no other reason. The two remedies are distinct from each other. Bumbalek v. Peehl (Wis.) 70 N. W. 71. As there indicated, unless the common law or some statute at the time of the adoption of the constitution precluded such writ in a case like this, the aggrieved party is entitled to the writ as a matter of right. Const. art. 1, § 21. Counsel has cited no authority to that effect, and, with the limited time at our command, we have found...