Schatz v. Pfeil

• Decision Date: 09 January 1883
• Citation: 14 N.W. 628,56 Wis. 429
• Parties: SCHATZ v. PFEIL AND OTHERS.
• Court: Wisconsin Supreme Court

56 Wis. 429

14 N.W. 628

SCHATZ

v.PFEIL AND OTHERS.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from circuit court, Washington county.

Frisby & Weil, for appellant, Gottlieb Schatz.

O'Meara & Miller, for respondents, Philip Pfeil et al.

TAYLOR, J.

This is an action to recover damages for a trespass upon real estate. The defense is that the locus in quo was a public highway, and that the acts alleged as a trespass were the acts of the defendants in removing a fence, which, it is alleged, the plaintiff had erected across such highway. The real issue in the case was whether the locus in quo was a highway. The evidence tends to show that in the year 1849, or thereabouts, the supervisors of the town in which the locus in quo is situated, looked over the route now claimed to be a highway with the purpose of laying out a highway, and declared to the owner of the land through which the proposed highway was to run that they had laid out a highway there; that they paid to John M. Samon, the person owning the lands adjoining the lands of the plaintiff, $10 as damages for taking his lands for such highway, which was received by such owner, and he shortly afterwards removed his fences and opened the way to the public, and has kept the same open to public use ever since; that about the same time some one on behalf of the town notified Gottlieb Hammel, the then owner of the locus in quo, that a highway had been laid out on the line between him and Samon, and gave him five dollars for his damages, which he received, and shortly afterwards moved his fence back and left the road open on his land. There is proof showing that the supervisors came upon the land at the time, and measured the line of the road before they declared it laid out, and before the money was paid to the owners of the land on either side of the line thereof. The only records of the road ever made were as follows:

“SURVEY OF ROAD NO. 7.

Commencing on the range line, at the quarter stake in section No. 18, and running on the line to the territorial road.

+------------------------------------------+
                ¦[Signed]¦CHARLES SCHUTTE,)  ¦             ¦
                +--------+-------------------+-------------¦
                ¦        ¦JAMES FAGAN,)      ¦Supervisors.”¦
                +--------+-------------------+-------------¦
                ¦        ¦“DAVID F. JOHNSON,)¦             ¦
                +------------------------------------------+
                

This survey had no date. There was a second record in the office of the town clerk, dated December 1, 1849, which reads as follows:

“SURVEY OF ROAD No. 20.

Commencing on the range line, at the quarter post on section 18, and running on the line to the territorial road.

+----------------------------------------+
                ¦[Signed]¦CHARLES SCHUTTE,)¦             ¦
                +--------+-----------------+-------------¦
                ¦        ¦)                ¦Supervisors.”¦
                +--------+-----------------+-------------¦
                ¦        ¦JAMES FAGAN,)    ¦             ¦
                +----------------------------------------+
                

“Attest: FERDINAND RUBLITZ, Town Clerk.”

The road, which had been opened and used from about the date of said last order, commenced at the quarter post of section 18, on the range line, and ran east on the quarter line between the N. W. 1/4 and S. W. 1/4 of section 18 for about 80 rods, terminating in unimproved lands owned by one Pfeil. The proof also shows that at that time there had been a territorial road laid out across the N. E. 1/4 of section 18, in a S. E. and N. W. direction, and it would seem that the intention was to open a road from the west side of section 18 on the quarter line east to this highway. The evidence also shows that this territorial road was used for a short time and then closed up, and that after such closing the road in question was not opened or used further east than about 80 rods, when it terminated on the lands of Pfeil. There is evidence showing that this road has been used by Pfeil and all others who desired to use the same for nearly or quite 30 years, and for several years last past one of the road districts of the town had purchased a gravel bed east of the east end of this road, and had used the road for hauling gravel from such gravel bed to repair the highways in the town. There was also some evidence showing that the town authorities had done some work on this road in order to keep the same in repair.

After the evidence was closed the learned circuit judge instructed the jury as follows: “Now, I charge you as a proposition of law that the proof in this case is not sufficient to make it a public highway by what is known in the law as prescription or user for a number of years. The use of it by the publichas not been such as, without something else, would make it a public highway in that manner. If it is a public highway at all, it becomes so by the acts of both parties,--I mean the authorities of the town where the land is situated, and the acts of the plaintiff grantor, Mr. Hammel. Now, the law is that where the town...