Town of Randall v. Rovelstad

• Court: Wisconsin Supreme Court
• Writing for the Court: DODGE
• Citation: Town of Randall v. Rovelstad, 105 Wis. 410, 81 N.W. 819 (Wis. 1900)
• Decision Date: 02 February 1900
• Parties: TOWN OF RANDALL v. ROVELSTAD ET AL.

105 Wis. 410

81 N.W. 819

TOWN OF RANDALL

v.ROVELSTAD ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1900.

Appeal from circuit court, Kenosha county; Frank M. Fish, Judge.

Action by the town of Randall against Andrew Rovelstad and another. Judgment for plaintiff. Defendants appeal. Reversed.

The following is the plat referred to in the opinion:

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It appeared upon the trial that from an early day--before the memory of any of the witnesses, which ran back as far as 1843--a traveled road existed, known as “the Kenosha and Lake Geneva Road,” also as the “Bullin's Bridge and Lake Geneva Road,” coming two or three miles from the eastward, and crossing a creek at the northeast side of Power's Lake, in Kenosha county, running thence northwesterly to a point in the county line, being the west line of section 7, township 1 N., range 19 E., at a point about 10 chains south of the quarter stake. The north shore of Power's Lake is a few rods south of the section line between sections 18 and 17, which is the present town line between the town of Wheatland and the town of Randall, in Kenosha county. The defendant has occupied a triangular space, partly in section 18 and partly in section 7, and extending from said road to the shore of said lake, a distance, as occupied, of about 90 feet on the westerly line and about 60 feet on the easterly line, a portion of which is claimed by the town to be part of the highway. In a duly-authenticated record book of the county of Racine, of which Kenosha was then a part, there appear, following a meeting of the board of county commissioners on April 8, 1840, surveys of several roads, among others a road corresponding substantially with the course of the traveled road in question; but the book contains no record of the adoption of said road by the county commissioners nor of the submission of any report of viewers with reference thereto. This was adopted into the highway records of Kenosha county, which was erected out of Racine county in 1850. It appeared that fences were built certainly prior to 1850, and by one witness carried back to 1846, or earlier, corresponding substantially with the road described in that survey, and that the town officers recognized and worked it from a very early day. It also appeared that in the autumn of 1840 the county commissioners of Walworth county recognized this highway as laid out by laying out a road extending from its terminus to Lake Geneva, and describing the starting point as a place on the county line at the terminus “of a highway recently run from Bullin's Bridge.” It appeared also that in 1894 the town of Wheatland, at a point a few rods northwest of the premises in question, recognized the lines of that highway as surveyed, and corrected deviations of travel therefrom. It was also shown that the court house of Racine county burned in 1861, and that many of the papers with reference to ancient highways could not be found. The record book in question showed that the first two or three years of the existence of Racine county, commencing in 1838, there was great activity in the laying out of highways, great numbers of petitions being filed, and great numbers of surveys of highways being recorded. The first instance in said record book where a survey of a highway is recorded occurs under the following circumstances: In the record of the meeting of commissioners it is stated that two specified highways were adopted. Immediately following the record of the meeting are recorded surveys of those highways in exactly the same form as the survey of the highway in question. Thenceforward a majority of the meetings of the board of commissioners are immediately followed by the record of surveys of one or more highways in exactly the same form as those following the first meeting, but with no entry in the record of the meeting itself of any action with reference thereto. These records are entirely indiscriminate in form; some of them indicating a signature by a surveyor, some indicating an accompanying report of viewers, and some of them without either. Except for such records, there is no record of the adoption or laying out of any highway during the period while the subject was under the control of the county commissioners. Among the highways thus recorded are many of the best known and most important highways in Racine and Kenosha counties, and among the six which are recorded together, including the one in question, following the meeting of April 8, 1840, is the main street of the city of Racine, extending from the public square northward to and across the river, upon which were located all the early business buildings of that city, and on which is now located the city hall. Upon the accompanying diagram the lines W X and Y Z indicate the location of the highway, as so recorded, past the property in question. At an early day, and apparently about 1846, the owner of the land in question, together with a considerable tract to the north and west of it, and which lay on both sides of the road, ran a fence on the north side very nearly approximating a line two rods from the center of the road according to said survey. Afterwards he laid a fence, irregular in course, along the southerly side of said highway, which, to the northwestward of the parcel here in question, deflected some distance southerly from the surveyed line in order to accommodate a deflection of the travel made necessary by a slough impinging on the northerly side of the highway as surveyed. After thus deflecting, the fence returned more nearly towards the surveyed line, and reached a point indicated by the letter A upon the diagram, where there is a tree, which stands about 10 feet south of the line of the highway as surveyed. From that point the course of the fence to the lake is indefinite, and seems not to have followed any line, but to have continued southeastward and southerly. The land at that point was brushy and sandy. In 1867 and 1868, one Benson, having become the owner of the land on both sides of the road, rebuilt the fence along the southerly side of the road by post and board fence, but, instead of following the curve of the old fence around to the point A, he ran it more to the southward, and direct to the lake; and testified, without dispute, that he did so, not with the intention of dedicating, but in order to save fencing, as the land there was sandy, and worthless for pasture, and by thus running straight down to the lake, instead of following the curve of the old fence, he saved about four lengths of fence. Meanwhile the fence on the northerly side of the road had been changed from time to time in places. At the point of the slough or marsh in question it was moved southerly two or three times, in order, as the person moving it testified, to make a better path for cattle inside the fence. Later it was moved still further southward, pretty much its whole length, which is explained by the then tenant of the farm, who made the change, by the fact that he understood the road was a three-rod road, while the old fence was adjusted to a four-rod.

Upon the accompanying diagram the dotted line south of the surveyed highway lines from B to A and onward indicates approximately the line of the old rail fence existing prior to 1868, and so old at that time that another fence was substituted for it. Its location is not definite, except that from the point B it extended past the tree (A) just about 10 feet south of the highway line, and thence southeastward through the present location of defendant's shed, which is located in the northeast corner of the premises claimed by him, and thence to the lake. The line from B to D represents the post and board fence built by Benson in 1868. Some time about 1878 a tenant of the premises discarded the fence from C to D, and built a fence from C directly south to the lake. The point C is the initial point adopted by the circuit court in describing the south line of the highway as adjudged. About 1895 the defendant, having purchased the premises above mentioned, built a house facing the lake, which extended northward approximately to the town line. He built a picket fence about five feet southerly from the line of the highway, according to the recorded survey, and in the northeast corner of his premises built a wagon shed, the northeast corner of which is about one foot south of the picket fence, and approximately on his east line. The court found that for more than 40 years there had existed a highway dedicated and thrown open to the public by the owners of the property on both sides thereof, and that the south line of said highway commenced at the point C and extended along the line of the board fence of 1868. He made no finding as to the line of the highway southeastward from the point C. He accordingly found that the cottage extends about 30 feet into said highway, that the picket fence and shed are wholly within said highway, and that said structures constitute an obstruction of the highway, and prevent the public from traveling over the same. It should be noted that of the picket fence only about 16 feet is south of the town line so as to be within the town of Randall. It further appeared that in 1894 one McGarry, then owning the Rovelstad premises and other property to the westward, had some controversy with the town of Wheatland, as a result of which they agreed with him upon a line for the southerly side of the highway in accordance with the picket fence above described, and three or four feet southerly from the line, according to the survey, on condition of his grading a suitable track across the slough, which he accordingly did, and adjusted his premises to the line so agreed upon. The preponderance of the evidence establishes that the general course of travel northerly of the Rovelstad premises has extended over the space between the present picket fence and the fence on the north side of the street, but the general...