Lawler v. Brennan

• Decision Date: 09 January 1912
• Citation: 134 N.W. 154,150 Wis. 115
• Parties: LAWLER v. BRENNAN ET AL.
• Court: Wisconsin Supreme Court

150 Wis. 115

134 N.W. 154

LAWLER

v.BRENNAN ET AL.

Supreme Court of Wisconsin.

Jan. 9, 1912.

Appeal from Circuit Court, Walworth County; A. J. Vinje, Judge.

Suit by Harry Lawler against John C. Brennan and others. Decree for plaintiff, and defendants appeal. Affirmed by divided court.

The plaintiff is the owner of a strip of land fronting on Lake Geneva. A highway passes across said land adjacent to said lake. Plaintiff is a dealer in ice, and, being desirous of building an icehouse on his land, and of digging a channel from such icehouse to said lake so as to convey the ice therein, applied to the town board of the town of Linn in which said land was situated, for permission to dig such ditch across the highway and construct a bridge over the same and at the same time presented to said board for its approval certain plans for the proposed ditch. The town board denied the right of plaintiff to construct any ditch across said highway and threatened to prevent him from so doing. Whereupon plaintiff commenced this action to enjoin the board from interfering with him in constructing such ditch. The defendant answered, denying the right of the plaintiff to intersect said highway with a ditch, and set up certain facts by way of counterclaim and secured an injunction enjoining the plaintiff pendente lite from interfering with the highway. Upon the conclusion of the trial of the action, the court held that plaintiff as the owner of the fee in the highway subject to the easement had the right under reasonable restrictions and regulations to construct the proposed ditch across said highway, and prescribed the conditions under which ditch should be constructed. From the judgment entered in plaintiff's favor defendants appeal.

Siebecker, Kerwin, and Timlin, JJ., dissenting.Charles S. French and Simmons & Walker (Thomas M. Kearney, of counsel), for appellants.

Fred Kull, Burr W. Jones, and J. L. O'Connor, for respondent.

BARNES, J. (after stating the facts as above).

His honor, Mr. Justice VINJE, tried this case while on the circuit bench, and is therefore disqualified from taking part in the decision on the appeal in this court. Justices SIEBECKER, KERWIN, and TIMLIN are of the opinion that the judgment of the circuit court should be reversed. Chief Justice WINSLOW, Justice MARSHALL, and the writer are of the opinion that the judgment appealed from should be affirmed. There being an equal division of the members of the court qualified to participate in the decision, as above indicated, the judgment of the circuit court must be affirmed.

It is so ordered.

TIMLIN, J.

This case is affirmed upon equal division between the six qualified members of this court. Nevertheless I think it advisable to make a memorandum of the reasons which led me to vote for reversal.

In this case the plaintiff owned a piece of land about 400 feet in width abutting on the east side of a public highway. On the west side of this highway lies Lake Geneva, a meandered navigable body of water.

It was contended by the plaintiff and the court found that a narrow strip of the plaintiff's land extended west of the highway and between the western boundary of the highway and the waters of Lake Geneva. The highway was 66 feet wide and skirted the lake for some distance. The plaintiff desired to connect his land with the waters of the lake by a ditch across the highway and applied to the town board of supervisors for permission so to do and that board refused permission by declining to take any action granting such permission. The circuit court found that prior to the commencement of the action the defendants who are the supervisors of the town of Linn, threatened to prevent the plaintiff from constructing and maintaining a tunnel or subway upon his land under said highway, and that a tunnel or subway constructed according to plans and specifications annexed to the findings and according to the findings would not unreasonably interfere with the public easement. Conclusions of law and a judgment followed, the judgment perpetually restraining the defendants from in any wise interfering with the plaintiff in the construction or maintenance of said tunnel or subway or the use thereof, “provided, however, that the foregoing is conditioned as follows: (A) That the plaintiff shall, at his own expense, construct and maintain such tunnel or subway, according to the plans and specifications hereto annexed, made a part of this judgment and marked ‘Exhibit A,’ and provided that in the construction and maintenance of said tunnel the plaintiff shall not in any manner interfere with or obstruct the travel upon said highway, or in any way injure or damage the same except in so far as it may be necessary and proper in the proper maintenance and construction of said specified tunnel or subway, and that in no event shall the height of the top of the floor of said tunnel or subway be more than two feet above the present grade of the macadamized portion of the present highway adjacent to said tunnel or subway, which shall be graded by the plaintiff on either side of said tunnel or subway, uniformly a distance of 100 feet for each two feet so raised; and provided, further, that said plaintiff shall extend the width of the bridge over said tunnel or subway whenever the town authorities shall widen the macadamized highway approaching said tunnel or subway.” Attached to the judgment is a plan or blue print of the proposed bridge approved and authorized by the court to be constructed, the same being a duplicate of the plan or blue print attached to the findings. This plan shows an open ditch 14 feet wide with a depth in it of 4 1/2 feet of water and a space between the water level and the overhead planking of the bridge of 30 inches. The bridge is to be of steel and concrete. It is given in front view and cross-section, and is 28 feet in width east and west or across the traveled part of the road, and carries on its east and west sides a concrete or stone fence or guard. At the place proposed for this crossing of the highway the ground is level, the fill of the highway is not over two feet above the natural level on either side. This is called a tunnel or subway. It is in fact an open ditch 66 feet in length, 14 feet wide, and 4 1/2 feet deep extending clear across the highway with the middle 28 feet thereof corresponding in width to the graded portion of the highway covered by an ordinary bridge. It seems to be called a tunnel or subway for the purpose of bringing the case within section 1346, Stats. 1898, which provides: “Any person owning land lying on both sides of any highway is hereby authorized to construct a tunnel under such highway, also the necessary fences for the passage of stock, and other purposes, to and through the same, in such manner as will not interfere with or endanger travel on such highway. All such tunnels shall not be less than twenty-five feet in length and shall be maintained by the person constructing the same, and the owner of such property shall be liable for all damages which may be...