Lindokken v. Paulson

• Decision Date: 06 April 1937
• Citation: 272 N.W. 453,224 Wis. 470
• Parties: LINDOKKEN v. PAULSON.
• Court: Wisconsin Supreme Court

224 Wis. 470

272 N.W. 453

LINDOKKEN

v.PAULSON.

Supreme Court of Wisconsin.

April 6, 1937.

Appeal from a judgment of the Circuit Court for Dane County; S. E. Smalley, Judge.

Reversed.

This action was commenced on November 16, 1935, by Henry Lindokken, plaintiff, against Martin T. Paulson, defendant to secure an adjudication respecting the plaintiff's right to a way over the premises of the defendant. There was a trial to the court. The court found in favor of the plaintiff and judgment was entered accordingly on November 4, 1936, from which the defendant appeals.

The facts are as follows: The plaintiff owns the northeast quarter of the southeast quarter, the south half of the southeast quarter and the north half of the southeast quarter of the southwest quarter of section 25, town 5, range 5. The defendant owns that part of the southwest quarter of section 30 lying west of the public highway in the same town and range. The plaintiff acquired title to the property by a conveyance from his father, Lars O. Lindokken, on or about September 18, 1907, who became owner of the premises on February 14, 1883. On October 16, 1885, Ole Paulson, predecessor in title of the defendant, was the owner and in possession of that part of the southwest quarter of section 30 heretofore described. On October 16, 1885, Paulson executed and delivered to Lars Lindokken an instrument of which the following is a copy:

“In Consideration of the sum of 25¢ to me in hand paid the receipt whereof is hereby confessed and acknowledged.

“I, Ole Paulson do hereby sell grant and convey to Lars O. Lindokken his heirs and assigns the Right of Way or a private road across a part of my land only for the purpose of carrying or transporting his milk to the Drammen Valley Cheese Factory said road being described as follows: Commencing about ten rods South from the NW corner of the SW 1/4 of SW 1/4 of Section 30, and running in a South easterly direction through said forty acre lot and also to run in same direction through the SE 1/4 of SW 1/4 of said Section up to the highway; said road is not to exceed one half rod in width and if it shall become necessary to erect gates across said road the said Lars O. Lindokken shall furnish the same and keep them in good repair and said Lars O. Lindokken shall have the right to work and keep said road in good repair so long as the said factory shall be operated there.

“Dated Perry October 16th, A.D. 1885.”

Thereafter Lars Lindokken and his successors in title used the road granted continuously uninterruptedly and openly for all purposes necessary and convenient in connection with the operation of the Lindokken farm. In 1896, although the reason therefor does not appear but apparently by consent of parties, the location of the way was changed. In 1916, Ole Paulson conveyed to the defendant, Martin T. Paulson, the land in section 30.

The trial court found that plaintiff and his predecessor in title used the way in question “for all purposes necessary and convenient in connection with the operation of said farm for more than twenty years, to-wit, about thirty-nine years, before the commencement of this action, across said real estate of the defendant and his said father Ole Paulson”; that the way or private road was and is eight feet in width and was used by the plaintiff and his predecessors with teams, automobiles, trucks, other vehicles, and foot passengers. It further appeared that prior to 1931 one gate was maintained at each end of the private road and one gate near the middle thereof; that subsequent to 1931, the defendant erected three other gates across said private road, and that the plaintiff has opened and closed said gates for the purpose of passing through the way.

The court further found that the use of said private road by the plaintiff and his father for all purposes necessary and convenient to them, after the permit had been granted by Ole Paulson to drive across his lands for the purpose of transporting milk only, manifested to the said Ole Paulson and the defendant a clear intent on the part of the said Lars O. Lindokken and the plaintiff that they were using said private road adversely and not under the written license or permit.

The court concluded as a matter of law that the use of the private road by the plaintiff and his father for all purposes was inconsistent with the right to transport milk only; that such use constituted a new and hostile entry upon defendant's lands and was a sufficient notice to the defendant that plaintiff and his predecessor claimed the right to use said private road adversely, and that such user constituted an ouster of the said Ole Paulson and the defendant and started the period of adverse user running; that the granting in 1885 of permission to transport milk only did not destroy the adverse character of such use. Judgment was entered accordingly, decreeing the right to the plaintiff to a way eight feet in width, the right to keep the same in repair and fit for travel; provided that it was the plaintiff's duty and obligation to close the gates and established the plaintiff's right to an easement over the premises particularly described in the judgment.

Hill, Beckwith & Harrington, of Madison, for appellant.

J. L. Steensland, of Blanchardville, and O. A. Stolen, of Madison, for respondent.

ROSENBERRY, Chief Justice.

It appears without dispute from the evidence that the parties to this action and their respective predecessors in title were neighbors, friendly and on good terms, until a short time prior to the commencement of this action; that for nearly fifty years no question was raised as to the character of the use which the plaintiff made of the way in question. The record is barren of any evidence that plaintiff or his predecessor in title ever asserted any right to the way in question other than such as may be deduced from the fact that the way was used not only for transporting milk to the factory but for ingress and egress to and from the plaintiff's farm for all farming purposes and for travel by people residing thereon.

The question therefore presented in this case is whether or not a use by the plaintiff of the way in question for purposes other than those specified in the grant of itself operated to bring home to the defendant the fact that the plaintiff was claiming a right to do so in hostility to the interests of the defendant. There is no doubt from the record that the defendant and his predecessor in title must have been aware of the fact that the way was being used for purposes other than transportation of milk to the cheese factory. We search in vain for any evidence that a right to so use the way was ever claimed on any ground. It was apparently a practice which grew up from the time of the making of the permit. The parties apparently continued to use the way in question as it had been used theretofore. No attempt was made by the defendant or his father to restrict it to the transportation of milk and no right was asserted by plaintiff and his predecessor on the other hand. Thus there is presented for decision here a very narrow question. From these facts the trial court deduced the conclusion that the use of the way made by the plaintiff was not under the license or permission granted; that such use manifested to the defendant and his predecessor in title a clear intent on the part of the plaintiff that the way was being used adversely and that such use constituted unmistakable notice that it was adverse and under a claim of right and not pursuant to the license...