Kieffer v. Fox
| Decision Date | 20 June 1927 |
| Citation | 193 Wis. 361,214 N.W. 441 |
| Parties | KIEFFER ET AL. v. FOX ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marathon County; A. H. Reid, Judge.
Suit by George Kieffer and others against Sam Fox and others. Judgment for plaintiffs, and defendants appeal. Affirmed.--[By Editorial Staff.]
This is an action brought by the plaintiffs against the defendants to permanently enjoin them from obstructing a certain alley abutting the property of the plaintiffs, and from preventing plaintiffs from using said alley as a means of ingress and egress to and from their respective premises.
Appellants' brief contains a plat (not drawn to scale), which affords a concrete view of the alley involved in this case and of the property abutting thereon, and a copy of such plat is hereby reproduced in order that a comprehension of the physical situation may be facilitated:
The complaint alleges that the plaintiffs are the owners of the east one-half of lot 2, block 19, of the original plat of the city of Wausau, Marathon county, Wis.; that the defendants Sam Fox and his wife, Bertha, are the owners of the south 50 feet of lots 7 and 8, in block 19, of said plat, and a strip of land 10 feet wide running east and west of the south side of lots 5 and 6 of block 19 of said original plat; that the plaintiffs are the owners of an easement over defendants' said land, which easement and right of way is appurtenant to the said plaintiffs' land; that said easement and right of way is described as follows, to wit: Commencing at the southeast corner of said lot 7 in block 19 of said plat; running thence west 37 feet; thence north 30 feet; thence east 37 feet; thence south 30 feet to the place of beginning; also, a strip of land 10 feet wide, running east and west of the south line of lots 5 and 6, of block 19 of said plat; that said plaintiffs, their predecessors in title, and their employees have for more than 52 years prior to the commencement of this action enjoyed the continued and uninterrupted use of said easement and right of way in passing and repassing to and from their above-described property on foot, by horse-drawn vehicles, and other vehicles; that said use and enjoyment of said easement has been open, notorious, continued and adverse, and exclusive of the rights of the defendants, their grantors, and predecessors in title thereto, for more than 52 years prior to the commencement of said action.
That the Wausau Aerie No. 251, Fraternal Order of Eagles, is a subordinate lodge of the Fraternal Order of Eagles, a foreign corporation, and is located at Wausau, and is the owner of the south 46 1/2 feet of lot 1, and the west one-half of lot 2, in block 19, of said plat; that the Wausau Aerie No. 251, Fraternal Order of Eagles, is the owner of an easement over defendants' land, which easement and right of way is appurtenant to the said plaintiffs' land; that said easement and right of way is described as follows, to wit: (Then follows a description of the easement, the same as that claimed by the plaintiffs Kieffer and Lerch). Following this is a claim of title, on the part of Wausau Aerie No. 251, of an easement, in language substantially identical to that alleged in the complaint with reference to the plaintiffs Kieffer and Lerch.
The complaint further alleges that prior to the commencement of this action the defendants have obstructed and have threatened to continue to obstruct the said easement, and that such obstruction will result in irreparable injury and damage to the plaintiffs, and that the plaintiffs have no adequate remedy in law. Then follows the prayer for injunctive relief, as above indicated.
In their answer, the defendants deny that the plaintiffs acquired title by adverse user.
The findings of fact are in conformity with the opinion of the court, and as said opinion concisely and clearly establishes the facts involved in the litigation, the substantial parts thereof are here set forth:
One Merklein owned and established a meat market on the lot now owned by plaintiffs Kieffer and Lerch as early as 1867, and within a few years thereafter had no passageway from Jackson street to the rear of his premises for vehicles, and at least as early as 1878 was regularly using the way here in question to reach the rear of his premises, where he did some slaughtering, had a smokehouse and other appurtenances, and from which he took out his meat products. The use of this way to the rear of these premises was continued uninterruptedly until about the time of the commencement of this action. At the commencement of this use the alley from Fourth street to the rear of the Fox premises was on the property owned by one Pratt. Buildings were constructed on both sides of this alley very many years ago. The exact time does not appear, but most of them were there in the 80's.
The firm of Ritter & Stahl used the premises, now owned by the plaintiff Eagles as a furniture store and manufacturing plant, from some time about 1881 until 1891. The rear of their building was used for the manufacture of bar fixtures and interior finish, and they brought their lumber and raw material to the premises through the alley in question, reaching the rear of their premises, and took products out. After their occupancy the premises were generally occupied by a saloon, or similar business, until the Eagles became the owner...
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Martin v. Meyer
...holding of this court in Carmody v. Mulrooney, 87 Wis. 552, 58 N.W. 1109,Wegner v. Erffmeyer, 193 Wis. 212, 213 N.W. 472,Kieffer v. Fox, 193 Wis. 361, 214 N.W. 441, and Shepard v. Gilbert, 212 Wis. 1, 249 N.W. 54. The rule in these cases is that when it is shown that there has been the use ......
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Shepard v. Gilbert
...552, 58 N. W. 1109, 1110;Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103;Wegner v. Erffmeyer, 193 Wis. 212, 213 N. W. 472;Kieffer v. Fox, 193 Wis. 361, 214 N. W. 441;Frank C. Schilling Co. v. Detry, 203 Wis. 109, 233 N. W. 635. It is the contention of the defendant that the doctrine of the ca......