Tupper v. Huson
| Decision Date | 24 May 1879 |
| Citation | 1 N.W. 332,46 Wis. 646 |
| Parties | TUPPER v. HUSON |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Sheboygan County.
Action for trespass in throwing down a fence upon plaintiff's premises. Answer, that the locus was a highway. Verdict, that defendant was not guilty of the alleged trespass. A new trial having been denied, and judgment entered upon the verdict plaintiff appealed therefrom.
Judgment reversed and cause remanded.
John E. Thomas, for the appellant.
Edwin Clark, for the respondent.
The testimony in this case is so vague and uncertain that it is difficult to get at the real facts. The witnesses doubtless made the matters about which they testified, the situation of the premises, etc., plain enough to the jury and court below but their statements as contained in the bill of exceptions are often unintelligible. A good diagram of the different tracts of land mentioned in the testimony, and of the lane or alleged highway, would have greatly aided us in getting a correct idea of the case. Under the circumstances, we must speak with some hesitation as to what the testimony tended to prove, and what inferences might reasonably be deduced from it. The controversy is about the right of the plaintiff to maintain a fence which she built on her own land, and which the defendant removed, claiming that the locus in quo is a public highway. It appears that this alleged highway, which was obstructed by the fence built by the plaintiff, commences on the south at what is known as the Dye Road (a public highway running east and west), and runs along the west boundary of the plaintiff's land, on the line between the towns of Lyndon and Lima, north about eighty rods, terminating at or near the premises of persons living north of the plaintiff. It is not pretended that it extends to, or communicates with, any other road on the north. But it seems that parties owning land on either side of this road or lane removed the brush and standing timber therefrom in 1858, or 1859, and erected and have maintained fences along the same until 1875; and that the lane or highway has been used by the adjoining owners, and persons living on land north, and others, for passing through to the north on business, until a recent period. The evidence tended to show, however, that gates or bars have been put across this lane or highway at different times by the owners of the adjoining land. But it was claimed on the part of the defendant, that the lane or road became a public highway by being used continuously and uninterruptedly as such by the public for a period of ten years or more before any of these obstructions were placed across it. On the trial, the circuit court was requested, on the part of the plaintiff, to charge, in substance, that the continued and habitual maintenance, by land-owners, of fences with gates or bars, across a lane claimed to be a highway, running over their lands to woods, where no road has been laid by public authority, if such fences, gates or bars were erected before the public acquired any right by user, would negative any inference that the owners intended or admitted the way to be a public highway; that, in a country like this state,...
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