Sizer v. Quinlan

• Decision Date: 24 May 1892
• Citation: 82 Wis. 390,52 N.W. 590
• Parties: SIZER v. QUINLAN.
• Court: Wisconsin Supreme Court

82 Wis. 390

52 N.W. 590

SIZER

v.QUINLAN.

Supreme Court of Wisconsin.

May 24, 1892.

Appeal from circuit court, Fond du Lac county; N. S. GILSON, Judge.

Action by J. W. Sizer against Patrick Quinlan. From a judgment dismissing his complaint, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

The plaintiff, Sizer, is the owner of a tract of land on section 2, containing about 17 acres, and also of 40 acres of land on section 1, about 90 rods east of the former tract. The defendant owns a tract of land lying immediately between the plaintiff's two tracts, and both parties derived title from the same common grantor, who, in conveying to the defendant Quinlan, reserved “a reasonable right of way across the land” so conveyed, between the tracts retained by him and now owned by the plaintiff. These tracts the said common grantor subsequently conveyed to the plaintiff's grantor, together with the said right of way. The plaintiff fenced in this right of way to the width of one rod and a half with a wire fence, for the better and more advantageous enjoyment of it, and the defendant, denying his right to fence it in, cut and broke down the fence in part, and sawed off a large number of the posts situate on the premises over which the way passed, and threatened to cut, tear down, and destroy the remainder of the fence, against the will of the plaintiff. Whereupon the plaintiff brought this action to enjoin and restrain the defendant from entering upon the plaintiff's premises, and from interfering with said premises, or with the plaintiff, in any manner, so as to prevent him from a full and free use and enjoyment of the premises as aforesaid, and of the fences situate thereon. The defendant admits the existence of the alleged right of way over his said lands, and alleges that he has not denied and does not deny plaintiff's right to pass over it, but he denies that the plaintiff has any right to fence in or inclose such right of way on the sides thereof. The circuit court at the hearing was of the opinion that the right of way was an easement merely, and that the plaintiff had no right to fence it in, and gave judgment dismissing the complaint, from which the plaintiff appealed.Duffy & McCrory, for appellant.

Colman, Sutherland & Hiner, for respondent.

PINNEY, J., ( after stating the facts).

The right of way reserved by the defendant's grantor, and afterwards conveyed by him to the plaintiff with the lands to which it was appurtenant, created a mere easement. The language of the deed reserving it is “a reasonable right of way,” and the common grantor of both parties conveyed it subsequently with the lands to which it was appurtenant as “the right of way across P. Quinlan's land.” The plaintiff thus became the owner of the dominant estate for the benefit of which the easement existed, and the defendant's was the servient estate, burdened with the easement in question. It is...