Kolpack v. Kolpack

• Decision Date: 17 April 1906
• Citation: 128 Wis. 169,107 N.W. 457
• Parties: KOLPACK v. KOLPACK (TWO CASES).
• Court: Wisconsin Supreme Court

128 Wis. 169

107 N.W. 457

KOLPACK

v.KOLPACK (TWO CASES).

Supreme Court of Wisconsin.

April 17, 1906.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by Fred Kolpack against William Kolpack. From the judgment rendered, both parties appeal. Reversed in part.

This action was brought by the plaintiff to restrain the defendant from passing over and removing barriers from lands owned by plaintiff and described as follows: The N. W. 1/4 of the S. W. 1/4 of section 1, township 28 N., of range 12 E., Shawano county, Wis. The defendant owned lands east of plaintiff's, which he purchased in 1878, at which time there was a traveled track across the plaintiff's land commencing near the northeast corner thereof and running in a zigzag direction across it and intersecting the highway on the west side thereof. This track the defendant claimed the right to use as a public highway. The plaintiff alleges in his complaint ownership of the property, and that there is a private road passing over it commencing at a point about four rods south of the northeast corner of the premises and thence running diagonally in a southwesterly direction to a point about 33 rods north of the southwest corner thereof, and that no highway had ever been laid out along or near said private road, and that the defendant or the public had acquired no right to use the same; that no dedication to the public had ever been made by the plaintiff or any former owner of the premises, and that the defendant had acquired no right to use said private road; that for about three years last past the defendant had used said road against the objection of the plaintiff and in defiance of his rights to the injury of the plaintiff; that in June, 1901, plaintiff constructed fences across said road and placed obstructions thereon and notified defendant to desist from using the same; that defendant removed the fences repeatedly and continued to use the road against the protest of plaintiff, and continued to commit acts of trespass daily; that the action is commenced to prevent such trespass and a multiplicity of suits, and for general relief. The defendant answered, admitting the plaintiff's ownership of the property, the removal of the fences and obstructions by defendant, and alleged that the road in question was a public highway and had been used for more than 10 years prior to the alleged trespass, and during such time had been worked and kept in repair by the town officers as a public highway. Defendant further alleged his ownership of the 160 acres of land adjacent to the plaintiff's premises, and that he had used the highway in question for 24 years and had constructed buildings on his premises with reference to said highway, and further denied generally the allegations of the complaint, and prayed that said highway be adjudged a legal highway, and that the plaintiff be enjoined from placing within the limits thereof any obstructions to public travel.

The court found that the plaintiff was the owner of the premises in question, and that there was a traveled track running diagonally across the same; that in 1878 defendant lived on the farm east of the plaintiff, and in 1881 the town board of the town in which plaintiff's premises are situated attempted to lay out a highway across his premises substantially following said traveled track; that said traveled track has been used by defendant since 1878, and that such use was commenced with the express permission and consent of the plaintiff; that in 1885 plaintiff informed defendant that he must procure another road; that since 1901 plaintiff has frequently built fences and obstructions across said road which have been removed by defendant; that since 1881 defendant has been using the traveled track under claim that the same was a public highway; that said traveled track has never been used by any one, except defendant and his family and those going to see them, since 1881; that in 1902, an action was commenced under section 1326, Rev. St. 1898, to recover the statutory penalty for obstructing a public highway; that the defense that the locus in quo was not a highway was pleaded, and the defense brought the title to land in question and the case was removed to the circuit court and tried; the only contested question being whether the traveled track or road was a highway. That it was determined in said action that said track or road was not a highway, and no appeal was taken; that the defendant procured the bringing of said action and prosecuted the same to final judgment, and employed and paid an attorney for such purpose. The court found, as conclusions of law, that the traveled track was not a public highway, but that the judgment in the action to recover the penalty was not res adjudicata in this action, and not binding upon the defendant; that the traveled track was a private way of defendant, and that he had a prescriptive right to use the same, and that plaintiff had the right to construct gates and bars across said traveled track as his convenience in farming might require, the same to be closed by the defendant, his agents and servants, after passing through the same; that the plaintiff was not entitled to an injunction restraining defendant from using the traveled track. Judgment was entered upon these findings accordingly. Plaintiff appealed from so much of the judgment as gave the defendant a private way by prescription across the premises in question, and also from the portion which denied costs...