Moore v. Roberts

• Decision Date: 01 December 1885
• Citation: 25 N.W. 564,64 Wis. 538
• Parties: MOORE v. ROBERTS.
• Court: Wisconsin Supreme Court

64 Wis. 538

25 N.W. 564

MOORE

v.ROBERTS.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Grant county.

Clark & Mills, for appellant, Hugh A. Moore.

Orr & Lowry and Bushnell & Watkins, for respondent, Abel Roberts.

ORTON, J.

The appellant, the plaintiff in the circuit court, was the owner of the land west of the section line, along which it was claimed a highway had been laid out three rods wide, and erected a fence on his side of said section line near the middle of said highway, and the defendant, as overseer of highways of that town, by order of the supervisors, removed said fence as an obstruction of the same, and the plaintiff brought this suit for damages against him on account of such removal, and after trial a verdict was found and judgment was rendered in favor of the defendant, from which judgment the plaintiff has appealed to this court. The defendant justified the removal of said fence by seeking to prove (1) that there was a legal highway along said section line; (2) that it had been used and worked as such; (3) that it had never been abandoned; and (4) that the plaintiff was estopped by his grantor receiving the damages to said land by reason of said highway, which had been awarded to him therefor. These were the questions in controversy. The highway was sought to be laid out under section 1275, Rev. St., upon the affidavit of one Thaddeus Cobb, who owned land south of the southern terminus thereof, to connect said land with a highway at the northern terminus thereof. The affidavit was lost and was probably never filed with the records, but the defendant introduced the order of the supervisors of the town in which said highway was laid out, which duly recited the making of said affidavit; the giving the proper notices of the time and place of the meeting and hearing said application; their meeting then and there, and their decision to lay out said highway; and their order laying out the same. This order appears to be according to law, and, by section 1289, it is made presumptive evidence of the facts therein stated, and such facts were not attempted to be disproved. The only objection to said order was that the highway therein described is not stated therein to connect with a highway at its northern terminus, but it was proved by oral testimony that it did so connect with a commonly used and traveled highway. There is nothing in the statute that makes it necessary that such fact should be stated in the order. The highway is sufficiently described by its distance between two certain points on and along the section line. This is sufficiently certain in order to ascertain whether it does, in fact, connect with another highway.

It was further objected by the learned counsel of the plaintiff that such other highway should be proved to be a legal highway. If that were necessary to be proved to sustain such a highway, so that it should not be a mere cul-de-sac, then it would be necessary further to...