State v. Town Bd. of Town of Tomahawk Lake

• Decision Date: 08 February 1927
• Citation: 192 Wis. 186,212 N.W. 249
• Parties: STATE v. TOWN BOARD OF TOWN OF TOMAHAWK LAKE, ONEIDA COUNTY, ET AL.
• Court: Wisconsin Supreme Court

192 Wis. 186

212 N.W. 249

STATE

v.TOWN BOARD OF TOWN OF TOMAHAWK LAKE, ONEIDA COUNTY, ET AL.

Supreme Court of Wisconsin.

Feb. 8, 1927.

Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.

Action by the State of Wisconsin against the Town Board of the Town of Tomahawk Lake, Oneida County, and others. Judgment for plaintiff, and defendants appeal. Affirmed.--[By Editorial Staff.]

This is an action brought by the state against the town board of Tomahawk Lake in Oneida county and others for a judgment determining that a certain road in question in said town is not a public highway, and for an injunction restraining the defendants from entering upon the lands of the state through which said road runs or extends for the purpose of opening or establishing a public highway thereon. The question involved is whether an old logging and tote road is a lawful public highway either by user or by certain proceedings taken by the town board pertaining to laying out a highway along the course of said road. The facts as found by the court may be summarized as follows:

On December 31, 1907, the state, by deed from Bradley & Kelley Land Company, became the owner of government lots 1 and 2 of section 8, and government lots 5 and 8 of section 9, in township 38 north, range 7 east. Such lands were required for the purposes of reforestation by the forestry department of the state. In 1914 and 1915 the state constructed on government lot 2 of section 8, aforesaid, a number of necessary buildings and established an institution known as Tomahawk Lake Camp for rehabilitating patients convalescing from tuberculosis, and has ever since maintained and operated said institution. Before the establishment of such camp the lands in question and other surrounding lands were wild and unoccupied. It is reasonably necessary for said camp to use and occupy all of lots 1 and 2 of section 8 aforesaid, and at least a portion of lots 5 and 8 of section 9, aforesaid, in order to attain the objects of said institution.

The Bradley & Kelley Land Company owned all of said lands during and prior to the year 1890, and either that company or a subsidiary thereof owned and operated a sawmill at the eastern extremity of Tomahawk Lake, and pine timber for the mill in question was taken from the lands in question. Said company, for the purpose of carrying on its logging operations in the years 1892 and 1893, maintained a logging camp at the western extremity of lot 1 of section 8 aforesaid, and for that purpose constructed and occupied a number of buildings and cleared land for camp, garden, and yard, and cut and opened up skidding and logging roads from said camp upon various parts of the lands here in question, and opened a tote road from the camp to Tomahawk Lake Station. Said tote road extended across the lands here in question substantially in the course and direction maintained by the present road involved in this action. Previous to the time of the building and use of the logging camp in question there were no roads of any kind upon said lands.

In the year 1891 one Woodzicka settled upon a homestead on the western side of the thoroughfare at the west side of lot 1 of section 8 aforesaid, and in 1893 or 1894 he and his family went to live upon said homestead. Beginning about 1895 or 1896 the Woodzickas began the business of receiving and entertaining fishermen and other sportsmen and gradually developed a so-called summer resort, which has been ever since maintained on the western shore of the thoroughfare in question. They and their guests and other hunters and fishermen made occasional use of the road running from the old logging camp toward Tomahawk Lake Station, and such use has continued down to the commencement of this action. The western end of said road was at Tomahawk Lake, and there was no eastern terminus until in the year 1899 the town of Hazelhurst caused to be surveyed and laid out a road between Hazelhurst and Tomahawk Lake Station. When such road was laid out, it became the eastern terminus of the road here in question. The Woodzicka resort at all times could be approached by a road from the west or by the water route of the lake, or by the road here in question. The road here in question was at first a skid road and tote road, very difficult of use, and was used only by hunters, campers, fishermen, and persons going to or from the Woodzicka resort, until after the establishment of the Tomahawk Lake Camp by the state. No work was done upon it by the town excepting that in the year 1906 one Rice asked permission of the town board to cut some of the brush out of the road, and was granted permission to do so, and was paid therefor by the town, and about 1922 the town superintendent of highways looked over the road in question occasionally and carried a spade and filled some ruts or holes therein. Said work in each instance was unimportant and without any knowledge or action on the part of the town board in respect to the road or in respect to directing the work to be done thereon.

In the year 1913 the state, acting through its forestry department, cleared out the road here in question for the purpose of making a fire line at which to stop any possible forest fires, but no large trees were cut.

After the establishment of Tomahawk Lake Camp the state cleared and widened and graded the road leading from the Hazelhurst-Tomahawk Lake road to the camp buildings, and later cleared and graded the road therefrom to the westward extending to the lake, and claimed the same as an institutional road. The clearing at the old logging camp was put under cultivation and used for the raising of vegetables and other products for the camp. Prior to the improvements made by the state on the road in question, said road was similar to many other old logging and tote roads on other wild lands in the vicinity and common upon all cut-over unoccupied lands in Northern Wisconsin.

On July 5, 1919, the town board of Tomahawk Lake, in which town the land in question was then located, proceeded upon petition and in opposition to the objection of the state to make an order purporting to lay out road No. 4 past the state tuberculosis camp, beginning at the point where the present traveled road from the state camp intersects the Hazelhurst-Tomahawk Lake road; thence in a westerly direction along the present traveled road to the thoroughfare between Big Tomahawk and Little Tomahawk Lakes.

On October 4, 1919, at the request of the superintendent of the state camp, said town board adopted a motion that “we rescind our order of July 5th laying out as a public highway road No. 4 which passes the state tuberculosis camp.” On September 29, 1925, pursuant to due petition and notice, two members of the town board of the defendant town, to wit, the time and place designated in the notice, and made an order that:

“A highway be and the same is hereby laid out in said town as follows, to wit, beginning at a point 175 feet back from the lake shore on road No. 3, thence running in a southwesterly direction 600 feet more or less, thence turning west 400 feet more or less to the lake front, all being in lot 1, section 8, town 38 north, range 7 E.”

At the same meeting the town board awarded the state board of control $5 as damages for going through the land.

On November 7, 1925, the town board adopted a motion that one Montgomery be instructed to brush out and clear the road here in question, and some work was done by him in the fall of 1925 after the commencement of this action but without the knowledge of any of the representatives of the state.

As conclusions of law the court found: That the beginning of the use of the road in question by the Woodzickas and by hunters, fishermen, and campers was not hostile or adverse to the owner, Bradley & Kelley Land Company, but was in accordance with the custom of using like roads through uninclosed wild lands in Northern Wisconsin, and must be considered to have been permissive. No right of way by prescription was acquired prior to the date at which the state acquired title to the lands. Neither was the said road used and worked as a public highway for ten years or more before the state acquired said title. No right of way by prescription or adverse user has been acquired as against the state of Wisconsin. That the attempt of the town board in July, 1919, to lay out a public highway over said right of way was wholly void for the reason that the road so...