Schroeder v. Moeley
| Decision Date | 15 January 1924 |
| Citation | 196 N.W. 843,182 Wis. 484 |
| Parties | SCHROEDER v. MOELEY. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sauk County; Emery W. Crosby, Judge.
Action by Peter Schroeder against Walter Moeley. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.
This action involves a right of way. For more than 25 years prior to this action plaintiff owned and occupied a farm of 380 acres in said county, no part of which abuts upon a public highway. He purchased the same from his father, Peter Schroeder, Sr., who had owned and occupied it for many years.
Plaintiff here asserts a right by prescription to travel by foot and vehicles from a point on his south line near his buildings, across defendant's farm on the north slope of a ridge and in a southeasterly direction to the public trunk highway No. 60, running from Spring Green to Sauk City, and crossing defendant's farm near his building; this claimed right of way being called herein the “west road.” Defendant denies such right and asserts plaintiff is limited, in reaching the highway, to another, called here the “east road,” which is substantially parallel with and about one-quarter of a mile from the “west road” and on the south slope of the same ridge on defendant's farm.
Defendant's farm was purchased by one Robert Riches from the Warren family in December, 1873. At that time it was being farmed by a tenant, Kammers. In about 1887 Robert Riches moved onto it and occupied a residence about where defendant's residence now stands, and the family lived there until Robert Riches' death in 1892. Shortly after that, John Riches, a son, acquired it by purchase, but seems never to have lived on it; his own residence being near. He sold in 1914 to the defendant here. During the period of his ownership, John Riches worked a part of the farm south of the trunk highway and built a barn in 1910 near the south end of the “west road.” Defendant added to this barn in 1914 or later. The part north of the trunk highway and crossed by both the east and west roads was farmed by tenants; from 1901 to 1908 by one William Paepke, and from 1910 to 1914 by Conrad Nolden.
In about 1877, when Robert Riches moved onto his farm, and when Peter Schroeder, Sr., built the present buildings near the southwest corner of plaintiff's farm, Riches and Schroeder made some arrangement by parol by which permission was given by the former to the latter to lay out and thereafter use the “east road,” and the same has been since used by the two Schroeders.
The testimony on plaintiff's behalf was substantially as follows:
Jake Kammers, 61 years old, lived on defendant's farm more than 50 years ago, and for 4 years with his father, a tenant of the then owners, and prior to the sale in 1873 to Robert Riches. He testified that at that time the “west road,” located as now claimed by plaintiff, was used by the elder Schroeder to reach the highway and for ordinary farm purposes. He saw it so used and used it himself. There were then no gates at either end, and he knew of no other exit being then used.
Plaintiff, 47 years old, lived substantially all his life on this farm, having received it from his father as early as 1896. He testifies to a continuous and open use of this way for teams during his ownership and prior thereto as far back as 40 years; that he never asked permission of the former owners of defendant's farm and never received any; that for many years he kept his mail box on the trunk highway near the end of this road; that a gate was placed at the upper end on his south line fence and has been maintained by him for all of 27 years; that a fence was built on defendant's farm alongside the west road about 20 years ago, and the same is still there.
William Paepke, 47 years old, was first on defendant's farm in 1894, and stayed there for 2 years working for John Riches. He testifies that there were gates at the north and south ends of this “west road,” and that the “west” and the “east” roads were both then used by the Schroeders. He later rented this portion of Riches' farm for about 8 years from 1901. He built the fence above mentioned in about 1902 and saw wheel tracks there then. That during his tenancy the Schroeders used the “west road” for carrying milk or cream and to collect the mail. That both roads were used, but the west one the more. That he gave no permission to Schroeder for such use.
William Seitz, 56 years old, lived on a farm just west of plaintiff's, exchanged labor with the Schroeders during threshing times, and knew of the “west road” being used for farm purposes over a period of 30 years.
Conrad Nolden, 37 years old, worked on defendant's farm for a year in 1901 or 1902, and helped build the fence alongside the “west road.” He was a tenant for 4 years from 1910, and helped John Riches build the barn during one summer. During these periods plaintiff used the west road to drive to town and to church. The east road was also used.
Three brothers of this Nolden, who had been at times employed on defendant's farm, also testified as to plaintiff using the “west road.”
There were other witnesses also as to such use.
On defendant's behalf he called one Tooley, 57 years old, who, in 1903 or 1904, for one winter's season, cut poplar from the woods west of this west road. During this period he saw no use made by Schroeder of the west road, but neither did he see Schroeder use the east road, and did see that the west road had at some time been traveled. In 1909 he bought a farm west of plaintiff, but never during the last 13 years saw plaintiff come out of the west road, and during that 13 years had only seen plaintiff on the east road “several times.”
George Fuchs was United States mail carrier, and as such traveled the trunk highway from 1903 to 1920 about nine times per week at the hours of 9 a. m. and 2 p. m. That up until 1916 or 1917 (the time a factory was built near the trunk highway a little to the west of the “west road”) had seen plaintiff come out on the east road. That after the factory was built he saw plaintiff come out on the west road. But his testimony is also that he did not know of or remember any use by Schroeder of the west road before such building and did not know of there being such road.
Chris Kindschi was town assessor from about 1900 to 1911. He visited plaintiff's farm once a year during that period and went up and down the east road and knew nothing of the west road.
Andrew Gruber was assessor from 1914 to 1919, and in visiting plaintiff's farm annually went up the east road.
Henry Lodde, town clerk for about 30 years living 1 1/2 miles away, had seen defendant's farm 40 or 50 times during the last 30 years; saw plaintiff during that period twice come out of the east road and first heard of the west road in 1919 or 1920.
Samuel Babbington, 76 years old, town chairman for 14 years, lived for 41 years 5 miles southwest of this farm, passing it about three times a week, being in the creamery business with factory near there. He knew of plaintiff's father on the farm 55 years ago and of the buildings on that farm for over 40 years and had seen the east road used many times; that before the time of the east road there had been a road used by plaintiff's father to the northeast. On direct examination he testified that before the Riches owned it (December, 1873), and in referring to plaintiff's farm, that there was “no road only that west one they came over; it was a winter road; they used to drive teams through there at that time.” That is more than 50 years ago. That he has not seen teams on the west road for over 40 years. That he has seen the east road used from 20 to 50 times in the last 50 years.
One Accola worked for the defendant on the farm for about 8 months in 1914 and saw no use made of the west road. On cross-examination, however, he testified as to having driven through the road with a team to the plaintiff's buildings in 1914 and knew of the gate at its north end.
John Riches, defendant's predecessor in title, 60 years old, son of Robert Riches, testifies that before the laying out of the “east road” the Schroeders had gone out to the highway easterly along their south line. He testifies that there were no tracks on the west road; no use whatever made of it by the Schroeders, and that their travel was always on the east road; that he never at any time saw plaintiff use the west road. He gave as a reason for the laying out of the east road that the Schroeders had no other way out than on their south line. That he never gave any permission to Schroeder to use the west road nor, so far as he knew, did his father. That he paid taxes during his ownership of it on the entire tract.
Walter Moeley, defendant, knew of the farm only since his purchase in 1914 and had paid taxes continuously thereon.
On rebuttal one Van Behren, 22 years old, worked for defendant in 1916 to 1917 and saw plaintiff then use both the east and west roads.
Plaintiff in rebuttal and on cross-examination by defendant's counsel testified that he had made up his mind to get rights superior to Riches' quite a number of years ago, and that he thought during this time he had a right to the way.
Defendant also testified that in the fall of 1921 plaintiff made claim of right to this west road.
Just before reaching the highway, the “west road” leaves defendant's farm and cuts across a corner of land belonging to one Kleinert, who was not a party here.
In 1917 defendant objected to plaintiff's use of this west road, but gave him permission to do so on one special occasion. In 1921 negotiations were had for the possible purchase of a right of way either along the west road or elsewhere. Such negotiations failing, plaintiff petitioned the town board under section 1275, Stats., to have the west road widened beyond the one-rod width. After a hearing the board decided to drop the matter.
The plaintiff gave evidence of...
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