Whaley v. Jarrett

• Decision Date: 01 November 1887
• Citation: 34 N.W. 727,69 Wis. 613
• Parties: WHALEY v. JARRETT AND ANOTHER.
• Court: Wisconsin Supreme Court

69 Wis. 613

34 N.W. 727

WHALEY

v.JARRETT AND ANOTHER.

Supreme Court of Wisconsin.

November 1, 1887.

Appeal from circuit court, La Fayette county.

Orton & Osborn, for respondent.

M. M. Cothren, for appellants.

COLE, C. J.

The rights of the defendants in the strip of land used for a private way must rest upon the clause in the deed to Alderson made by Stephens, June 7, 1865. That deed conveyed to Alderson certain lands in section 6, which are west of the strip in question, and contains this clause: “Also the following described strip of land, to be used by said second party as a private road, and for private road purposes, to-wit: Commencing at the N. W. corner of the S. W. 1/4 of section 5, T. 1, R. 1, east of the 4th P. M., running thence E. 27 and 33-100 chains, to the public highway running from Benton to Elk Grove and Platteville; then south on the line of the said public highway 24 feet; thence west 27 and 33-100 chains; and thence north 24 feet, to the place of beginning,--containing one and 6-100 acres of land; in and to which said last-described strip of land there is hereby granted to said second party a mere easement of travel and private road privilege, but no other or greater or further estate whatever, or title or interest of any kind whatever.”

Now, the question is, can a party possessing the rights thus granted in the deed over a strip of agricultural land, forming a part of a farm, insist that this may be kept open at each end; or may the owner of the land which is subject to the easement lawfully maintain gates at the end of the strip which do not unreasonably interfere with the right to travel over the way by those in whose favor the easement exists, and impose upon such persons using the way the duty of closing and fastening the gates after passing through them? This question seems to be very clearly settled by the authorities to which we were referred by the respondent's counsel. Maxwell v. McAtee, 9 B. Mon. 20;Bakeman v. Talbot, 31 N. Y. 366;Garland v. Furber, 47 N. H. 301;Houpes v. Alderson, 22 Iowa, 160;Amondson v. Severson, 37 Iowa, 602;Baker v. Frick, 45 Md. 337; Washb. Easem. (3d Ed.) top pp. 230, 231, 264. The learned author last cited, on page 264, uses this language: “It seems to be now settled that, if the land-owner is not restrained by the terms of the grant of a right of way across his lands for agricultural purposes, he may maintain fences across such way, if provided with suitable bars or gates for the convenience of the owner of the way. He is not obliged to leave it as an open way, nor to provide swing gates, if a reasonably convenient mode of passage is furnished.” Indeed, there is no room for doubt, upon the authorities, that a grant of way across one's land does not imply that it is to be open and free from gates, unless the nature of the use to which it is to be applied indicates thereby that it should be open and unobstructed. It is a principle of law that nothing passes as an incident to the grant of an...