Johnson v. Borson

• Decision Date: 14 October 1890
• Citation: 46 N.W. 815,77 Wis. 593
• Parties: JOHNSON v. BORSON.
• Court: Wisconsin Supreme Court

77 Wis. 593

46 N.W. 815

JOHNSON

v.BORSON.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Dane county.

Luse & Wait, for appellant.

Richmond & Smith, for respondent.

TAYLOR, J.

This action was commenced in the municipal court of Dane county to recover damages for an alleged trespass upon the lands of the plaintiff, and for throwing down the bars and fences thereon, by reason whereof the plaintiff's domestic animals escaped from his inclosure, and trod down and destroyed the crops growing and being thereon. The defendant answered that, at the time and place mentioned in the complaint, the defendant had a right of way over the lands described in the complaint, when and where the alleged trespasses were committed; and that the plaintiff, disregarding the right of the defendant to pass along said right of way, “unlawfully obstructed said way by placing therein, at a point about midway between the termini thereof, a bar-way, with large and heavy bars, so large and heavy as to make it unreasonable to require this defendant, and those going over said way, to and from his said premises, to take them down, and replace them; and that this defendant had no other way of ingress or egress to and from his said land from the highway or any public road; and that, in the exercise of his lawful right, he took down and removed said bars, doing no unnecessary damage to the plaintiff.” By an amended answer, the defendant alleged “that, prior to 1886, he (this defendant) was the owner of the premises described in the complaint, also the lands which he still owns, lying north and west of said fourteen-acre tract; that such other lands, lying west and north, are wholly shut out from the highways, and the only way of getting in and out to the highway was over said fourteen acre tract; that this defendant conveyed said premises, the fourteen-acre tract, described in the plaintiff's conplaint, to one John Peterson, the plaintiff's grantor, retaining the lands to the north and the west, as aforesaid, and still owns and occupies the same, and they are still shut out from all public highways, as aforesaid; that the defendant thereby reserved and retained a right to pass and repass over said fourteen-acre tract to the highway, as of necessity; and that the plaintiff wrongfully obstructed his said right of way; and that this defendant only removed such obstructions, doing no damage.” The case was tried by a jury in the municipal court, and they returned a verdict in favor of the defendant, upon all the evidence in the case. The plaintiff appealed from the judgment of the municipal court to the circuit court of Dane county, but made no affidavit so as to entitle himself to a new trial of the whole case in the circuit court. The testimony in the municipal court was taken by a short-hand reporter, and the entire testimony on the trial in the municipal court was certified and returned, with the pleadings and other proceedings, to the circuit court, and the learned judge of the circuit court tried the case upon the evidence so taken on the trial in the municipal court. Upon the trial in the circuit court, the learned circuit judge made and filed his findings of fact and conclusions of law as follows: “I find the following facts: (1) I find plaintiff and defendant owners of respective premises, as stated and alleged in the pleadings; (2) that the fourteen-acre piece of land, described in the pleadings, adjoins the public highway, and lies between it and the land owned and occupied by the defendant, and that the defendant owned said fourteen-acre piece of land, together with the land now occupied by him, prior to the sale by him of said fourteen-acre piece of land to the plaintiff's grantor; (3) that said lands of the defendant are adjacent to no public highways, and defendant has not now, nor has he had since he sold said fourteen-acre piece, any way by which to reach a public highway except by crossing said fourteen-acre piece; (4) that, by reason of the foregoing, the defendant has a right of way, by necessity, over a portion of plaintiff's premises, that is, over said fourteen-acre piece to the highway; (5) that plaintiff erected and maintained the bars in controversy on the line between the said fourteen-acre piece of land and a ‘flat-iron’ shaped piece of land, never owned by said defendant or his grantors, which lies adjoining said fourteen-acre piece on the east, and is included in the lands owned by the plaintiffs; (6) that the bars were used in connection with a fence on plaintiff's land, and that such use of the premises was a reasonable and proper use, and that they were not an unreasonable obstruction to defendant's use of right of way; (7) that the bars erected and maintained by plaintiff in this case are so located and constructed as to be reasonable and proper in such location and construction, in view of the purpose for which the premises are used by the plaintiff, and the use of the right of way by the defendant; (8) that defendant has repeatedly neglected to replace the bars when he removed the same, or caused the same to be removed, to the damage of the plaintiff; (9) that across said flat-iron shaped piece of land, on the east of the fourteen-acre piece, the defendant has no right of way, except as plaintiff has given defendant license to travel there, or when, by mutual agreement, defendant's passage to the highway across the fourteen-acre piece...