State ex rel. Lightfoot v. McCabe

• Decision Date: 15 October 1889
• Citation: 43 N.W. 322,74 Wis. 481
• Parties: STATE EX REL. LIGHTFOOT v. MCCABE ET AL., SUPERVISORS.
• Court: Wisconsin Supreme Court

74 Wis. 481

43 N.W. 322

STATE EX REL. LIGHTFOOT

v.MCCABE ET AL., SUPERVISORS.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from circuit court, Winnebago county.

On petition of the relator, Frederick Lightfoot, Jr., for a writ of mandamus, an alternative writ was issued out of the Winnebago county court, directed to the respondents, the supervisors of the town of Winneconne, commanding them to proceed to cause a certain alleged public highway, described in the petition, to be ascertained, described, and entered of record in the proper town clerk's office, pursuant to section 1223, Rev. St., as amended by chapter 103, Laws 1885, or show cause to the contrary before said court at a time therein specified. The supervisors made return to such writ, denying that the locus in quo is a public highway. The matter was heard by the court on the issue thus made by the petition and return. The testimony introduced on the hearing showed that in 1857 one Joseph Langley sold and conveyed to Frederick Lightfoot, the father and grantor of the relator, the W. 1/2 and N. E. 1/4, all in the S. W. 1/4 of section 23, in township 19 N., of range 15 E. The conveyance contained the following grant: “Together with a right of way running north and south through the center of the west half of the north-west quarter of said section, for the free passage at all times of the said party of the second part, his heirs and assigns, their servants and families, cattle, horses, and other animals, carts, and vehicles, to and from the premises above described.” The lands over which such right of way was thus granted, belonged to said Langley. This right of way commenced at the north line of said W. 1/2 of the S. W. 1/4 of section 23, extended north one-half mile, and terminated in a public highway, leading from Winneconne to Oshkosh. It intersected no other highway. The relator owns the land thus conveyed to his father by Langley to which such right of way is appurtenant. The proof as to the extent this right of way has been traveled and used is stated in the opinion. In or about the year 1860, and in several years between that year and 1885, the relator and his father were permitted by the supervisors of the town, or the overseers of the highway of the road-district in which such lands were situated, to work out their highway taxes, or portions thereof, on such right of way. In 1880 or 1881 the overseer also furnished plank for a culvert, and directed gravel to be hauled thereon. The court found from the evidence that the locus in quo is not a public highway, as claimed by the relator, and thereupon gave judgment denying the peremptory writ of mandamus prayed for, and dismissing the petition and alternative writ. The relator appeals from the judgment.

James H. Merrill, for appellant.

Boucks & Hilton, for respondents.

LYON, J., ( after stating the facts as above.)

Counsel for the relator asserts in his brief that under the laws of this state there are no private roads, and cites Osborn v. Hart, 24 Wis. 89, to sustain his position. This is a misapprehension of that case. It was there held that a statute which provided that private roads might, on certain conditions, be laid through lands without the consent of the owner thereof, was invalid, because it attempted to authorize the taking of private property without the consent of its owner, for the mere private use of another person. The case does not hold that a private way cannot be created by grant, or established by prescription. The grant by Langley to Frederick Lightfoot, Sr., was of a private way only, for it is limited to the use of the grantee, his heirs and...