Dyer v. Walker

• Decision Date: 03 May 1898
• Citation: 75 N.W. 79,99 Wis. 404
• Parties: DYER v. WALKER.
• Court: Wisconsin Supreme Court

99 Wis. 404

75 N.W. 79

DYER

v.WALKER.

Supreme Court of Wisconsin.

May 3, 1898.

Appeal from circuit court, Grant county; George Clementson, Judge.

Action by George A. Dyer against Alex. K. Walker. There was a finding and judgment for plaintiff, and defendant appealed. Affirmed.

This was an action of trespass, tried by the court; and it was found that the plaintiff was the owner in fee simple and in possession of 40 acres of land, to wit, the S. E. 1/4 of the S. E. 1/4 of section 10, township 5, range 3, in Grant county, which was improved farming land, inclosed by substantial fences, a public highway crossing said tract in an easterly and westerly direction near its south line. The defendant owned and occupied as his homestead farming lands which bounded said tract of land on the north, and the defendant had a private right of way one rod in width across said tract, commencing at a point about five chains westerly from the southeast corner thereof, and extending thence in a northerly direction across said tract to the north line thereof, which is the south boundary of the lands owned by the defendant, which right of way was acquired by prescription, and the existence of which had been adjudged and confirmed by the judgment of the circuit court for Grant county in an action between these parties rendered at its October term, 1894. Prior to 1894, a part of that part of said 40-acre tract of land lying to the west of said private right of way was improved farming land, inclosed by fences, and the remainder thereof was uninclosed, and lay out to commons. The plaintiff inclosed the whole 40-acre tract with fences, and commenced to clear and improve that part of the tract which had theretofore been common. At each end of the defendant's private right of way, there is a gate where it crosses the north and south boundaries of said tract, and that part of said tract of land which lies north of the said public highway is partly pasture land, and partly land that is suitable for plow land. In the spring of 1896 the plaintiff plowed and planted to corn and other cultivated crops a piece of land in the southeast corner of said tract, containing about four acres, to wit, all the cleared land in said southeast corner thereof, and that more of the said southeast portion of said land would be planted to corn and other crops as soon as the timber should be cleared therefrom, and that the north part of said tract, on account of the character of its surface and its proximity to other pasture lands of the said plaintiff, was suitable only for the pasturing of live stock. In order that the plaintiff might have the use of the north part of said 40-acre tract of land (about 25 acres) for pasturage, and the south part for the growing of cultivated crops, it was necessary that the said plaintiff should separate said pasture land from the cultivated lands by means of a substantial fence which would have to be built across the said private way of the defendant. It was further found that such use of said 40-acre tract of land was reasonable, and that a fence built across said private way of the defendant with a good and serviceable gate well hung, so as to leave a passageway of about 12 feet in width, was not an unreasonable obstruction of said defendant's right of way across said plaintiff's tract of land; that on or about July 11, 1896, the plaintiff, in order to protect his crops then growing in the southeast portion of said tract, and in order that he might use for pasturage the northern part of said tract, built a fence in an easterly and westerly direction across the said tract of land, and across said defendant's private right of way; that in said fence, and where the same crossed the defendant's right of way, he hung a gate for the use of said defen...