Bartlett v. Beardmore

• Decision Date: 23 September 1890
• Parties: BARTLETT v. BEARDMORE ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 356

46 N.W. 494

BARTLETT

v.BEARDMORE ET AL.

Supreme Court of Wisconsin.

Sept. 23, 1890.

Appeal from circuit court, Winnebago county.

It is undisputed that at the time of the trial the plaintiff was the owner of the E. 1/2 of the S. W. 1/4 of section 8, township 14, range 16, in Winnebago county, and had been for 40 years; that the north line of his land was the south line of land owned by Silas M. Allen, and subsequently by his son Timothy; that in 1849-50 a state road was laid out and opened from what is now Berlin to Neenah, which struck the west line of said section 8 at the quarterpost, and ran from thence east on the quarter-section line of said section to a point designated as “X,” and from thence north-easterly at an angle of about 45 degrees, and ran on towards Neenah; that, 20 rods west of the point X, there commenced a public highway at a point designated as “A,” in the center of the state road, and ran from thence south, along the west line of Bartlett's land; that the portion of the state road from A to X was about 63 feet wide, of which about 30 feet was on Bartlett's land, and 33 feet on Allen's land; that travel on that portion of the state road which ran north-easterly from the point X was for a short distance abandoned, many years ago, and instead thereof the travel continued directly east from the point X for a distance of about 6 rods, where the road fence on the north or Allen's side of the road, turned north-easterly; that upon the south side of said state road, and about 30 feet from said quarter-section line, and for a distance of 23 rods and 20 links east from the centre of the road mentioned as running south, Bartlett maintained a substantial road fence, the east end of which was constructed of pickets, and terminated at a point designated as “E;” that from thence Bartlett's fence ran south a distance of 10 feet, and from thence east a distance of 10 or 12 feet, to the north-west corner of his barn; that that barn was 60 feet long, east and west; that 86 feet and 4 inches east of the barn was Bartlett's east barn-yard fence, which run from the south directly north to a point designated as “F,” 5 feet north of said quarter-section line, which point (F) was 66 feet from the road fence on the north-west side of the road; that from said point (F) in an easterly direction, for a distance of 17 feet, and from thence in a south-easterly direction to a point in said quarter-section line designated as “G,” there was an old board fence wholly on Allen's land, said to have been put there by Bartlettin 1860; that the barn doors on the north side of Bartlett's barn were about 12 feet wide, and came to about 12 feet from the north-west corner of the barn, and about 36 feet from the north-east corner thereof; that in 1884 or in 1885, Bartlett built a barbed-wire fence from the point designated as “F,” at the north end of the barn-yard fence mentioned, westerly, and a little south of west, for a distance of 124 1/2 feet, to a point designated as “B,” the same being 5 feet and 4 inches south of the quarter-section line, and only 38 feet and 4 inches from the road fence on the north side of the road at that point; that 65 feet of the easterly end of that wire fence was on Allen's land, and only 59 1/2 feet of the westerly end of it was on Bartlett's land; that the point so designated (B) was directly north from said barn doors, and 33 feet therefrom; that said wire fence was torn down, October 27, 1887, by the defendants, acting as town supervisors and overseers of highways, for which this action of trespass was brought. The defendants justify on the ground that the portion of said wire fence on Bartlett's land was an unlawful obstruction of said highway. The jury returned a special verdict to the effect that all of the wire fence on Bartlett's land so pulled down was in a public highway, which had become such by lawful user, and that if the plaintiff was entitled to recover they assessed his damages at $4.50. The court overruled the plaintiff's motion for a new trial, and ordered judgment for the defendants, with costs. From that judgment the plaintiff brings this appeal.Gary & Forward, for appellant.

Gabe Bouck, for respondent.

CASSODAY, J., ( after stating the facts as above.)

A former judgment in this action was reversed for error. 74 Wis. 485, 43 N. W. Rep. 492. The evidence as to the exact location of the fence in front of and north-easterly from Bartlett's barn prior to the construction of the wire fence in question is considerably mixed and conflicting. There is considerable evidence on the part of the plaintiff tending to prove that, as early as 1862 or 1863, he built a board fence from a foot or so east of the barn door directly north to where the wire fence stood, and from thence easterly, on substantially the same line occupied by the wire fence, to the old board fence mentioned in the foregoing statement; that the fence so running north from the barn was not stationary, but was put up in the fall, and taken down in the spring, and sometimes built of one kind of material, and sometimes of another; that “sometimes it commenced at a post a few feet from the west corner of the barn, and ran north-east to the corner post of the barbed-wire fence” designated “B,” in the foregoing statement; that for many years prior to the construction of the wire fence, Bartlett had maintained a fence of some kind on substantially the same line where the wire fence was located. On the contrary, there is evidence on the part of the defendants tending to prove that such old fence started 7 or 8 feet east of the barn door, and run in a north-easterly direction until it reached the point designated “F” in the foregoing statement, or until it struck the west end of the old fence wholly on Allen's land, running westerly from said point (F) somewhere from 20 to 35 feet, and which was some 55 to 60 feet from the road fence on the north-west side of the road; that west of the fences last mentioned there was no fence between the barn and the traveled track of the highway prior to the construction of the wire fence; that while the main or regularly traveled track was always north of where the wire fence was located, yet that up to the time of such location there had from time to time been public travel over the whole of the land where that portion of the wire fence on Bartlett's land was located, and that this was especially true in the spring of the year, when the main traveled track was more or less muddy. Such evidence, with the...