Frye v. Vil. of Highland

• Decision Date: 26 February 1901
• Citation: 85 N.W. 351,109 Wis. 292
• Parties: FRYE v. VILLAGE OF HIGHLAND.
• Court: Wisconsin Supreme Court

109 Wis. 292

85 N.W. 351

FRYE

v.VILLAGE OF HIGHLAND.

Supreme Court of Wisconsin.

Feb. 26, 1901.

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

Action by Eliza Frye against the village of Highland. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action for relief for obstructing an old traveled way which plaintiff claimed the right to use. The action was in equity for a mandatory injunction requiring the removal of the alleged obstructions. Two grounds were alleged as the foundation of plaintiff's claim: First, that she was the owner of the right of way by adverse use for more than 20 years; second, that it was a public way in which she had a special interest.

Plaintiff's husband purchased the north 22 feet of lot 9 of the village of Highland, Iowa county, Wis., about the year 1879. Such property was bounded on the west by Main street, on the south by the remainder of lot 9, on the north by lot 8, and on the east by lot 73. Plaintiff and her husband resided on the property from about the day of such purchase till he died, and thereafter she continued to so reside up to the time of the commencement of the action. She became the owner of the property under her deceased husband. When such residence commenced, for a long time prior thereto, and some time thereafter there was a traveled way from Main street along the south part of lot 8 to the vicinity of the southeast corner thereof, thence southeasterly across the northeast part of lot 9 to lot 73, thence south along the west side of lot 73 to Spring street. From 1872 to about 1880 there was a hotel on the south two-thirds of lot 9, and a barn used in connection therewith on the southwest corner of lot 72, which corner was identical with the northeast corner of plaintiff's property, with the southeast corner of said lot 8, and the northwest corner of lot 73. The barn was reached from Spring street by the traveled way along the west side of lot 73, and from Main street by the traveled way along the south side of lot 8. As before indicated, the two traveled ways connected with each other by passing over the northeast part of lot 9, being of that portion thereof owned by plaintiff's husband and now owned by her. The hotel property was purchased in 1875 by a Mrs. Patrick, together with the south 24 feet of lot 8 and the west rod of lot 73, covering the two traveled ways mentioned. Thereafter, as long as such hotel property was used as such, the two strips of land were devoted by the owner to the use of the patrons thereof, but she allowed all persons to use the same who desired to do so in going to and from points reached thereby, and also allowed the plaintiff, and her predecessor in title, to use the same as they desired in connection with the north one-third of lot 9. The hotel barn was used for some time after 1880, and the two ways were also used in connection therewith. The way on lot 8 was the means by which access to and egress from the back part of the north one-third of lot 9, and access to the back part and north door of plaintiff's house, were obtained. It was used continuously for all the purposes of travel incident to the ownership of said north one-third of lot 9, from the time plaintiff's husband purchased the same till it was obstructed by the defendant, covering a period of more than 20 years. During the entire period it was also used for travel by all persons who desired to do so, plaintiff and her predecessor in title not claiming any better right to use the way than any other person. About 10 years before the act complained of occurred, plaintiff fenced the back part of her lot, thereby shutting off the connection between the two ways. About that time the owner of lot 8, Mrs. Patrick, commenced to construct a fence to shut off the common use of the traveled way on lot 8, no complaint being made by plaintiff in regard thereto. Before completing her purpose, Mrs. Patrick abandoned it, leaving the way open to use as theretofore. Some four years prior to the act complained of, plaintiff sold the back part of her lot for the purposes of a creamery. A creamery was thereafter constructed and operated thereon, and in reaching it from Main street those desiring to do so passed over lot 8, using the old traveled way. When plaintiff moved onto the lot there were some loose boards laid along the south boundary line of lot 8 for use in passing from the north door of her house to Main street. The boards were in time taken up and a sidewalk constructed in their place. The owner of lot 8, as indicated, used the way thereon in connection with her hotel property so long as it was operated as such, and thereafter, for some years, reaching to a time subsequent to 1880, and permitted all other persons, including plaintiff, to do so without objection. Defendant placed the village engine house so as to obstruct said way, having obtained legal title to the land for village purposes. When the work of so locating the engine house was in progress plaintiff made no claim that it was an infringement upon her rights. She made some requests for favors in regard to the precise...