Walls v. Cunningham

• Decision Date: 13 December 1904
• Citation: 101 N.W. 696,123 Wis. 346
• Parties: WALLS v. CUNNINGHAM.
• Court: Wisconsin Supreme Court

123 Wis. 346

101 N.W. 696

WALLS

v.CUNNINGHAM.

Supreme Court of Wisconsin.

Dec. 13, 1904.

Appeal from Circuit Court, Richland County; George Clementson, Judge.

Action by Gardner Walls against M. H. B. Cunningham. From a judgment for plaintiff, defendant appeals. Affirmed.

Action by one of two adjoining landowners to recover of the other some cattle belonging to the former, which the latter had distrained while trespassing on his land, they having escaped from the land of such other to that of his at a point where there was no division fence.

Plaintiff's right to recover turned on whether the statutes on the subject of division fences applied to such a situation as the division line in question.

The case was tried by the court. It was admitted, or the evidence established these facts: Plaintiff's land is described as “all the south half of the southwest quarter of section three lying on the west bank of Pine river, and all of the southwest quarter of the southeast quarter of section three which lies west of Pine river. Also commencing at the northwest corner of section ten, thence east to Pine river, thence down the west bank of said river to the south line of the north half of the northwest quarter of said section, township eleven, range one, east, in Richland county.” Defendant's land is situated opposite plaintiff's and is described thus: “Commencing on the southwest corner of lot one in fractional block three in the village of Rockbridge, thence running west to the channel of Pine river, thence up said channel north to the Austin branch; thence up said branch to the centre of Pine river road; thence southeast in the center of said road, &c., subject to flowage of said lands by reason of the milldam at such height as was established when the mill at Rockbridge was running at full head, not exceeding eight feet at the dam at an ordinary stage of water.” The mill was practically in ruins and the dam ceased to exist some years before the date of the alleged trespass. The lands were used by the respective parties for farming purposes. No proceedings were ever taken by either for the establishment of the line for a division fence between their holdings, and a partition of such line. Each holding was inclosed on all sides, except along the river. The owners had used their lands in that condition for some years. The plaintiff's cattle escaped from his pasture to that of the defendant on the opposite side of the river, where they were taken up by the latter. Cattle had been accustomed to pass back and forth from one pasture to the other in the same manner. In case of a restoration of the dam the back water therefrom would cover a considerable part of defendant's land. The maintenance of the fence along the bank of the river would be a matter of considerable difficulty because of the banks being so low that the fence would be at times submerged and destroyed.

The decision was to this effect: The lands of the parties are adjoining lands within the meaning of section 1393, Rev. St. Wis. 1898. The word “river” in section 1395 of such statutes includes Pine river. No proceedings were taken under such statutes and no decision of fence reviewers obtained as to where the partition fence should be built between the holdings of the parties, or that such a fence was impracticable, therefore the escape of cattle belonging to one owner across the division line between his land and his neighbor's to the land of the latter, gave to such neighbor no right of action for trespass. Pursuant thereto...