Wille v. Bartz

• Decision Date: 23 October 1894
• Citation: 60 N.W. 789,88 Wis. 424
• Parties: WILLE v. BARTZ ET AL.
• Court: Wisconsin Supreme Court

88 Wis. 424

60 N.W. 789

WILLE

v.BARTZ ET AL.

Supreme Court of Wisconsin.

Oct. 23, 1894.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Mary Wille against Julius Bartz and another to recover damages for trespass on plaintiff's freehold. From a judgment for plaintiff, defendants appeal. Affirmed.

The plaintiff brought her action in justice's court against the defendants, Julius Bartz and David Green, for trespass on her freehold in Fulton, Rock county, lying on and along the east side of the public highway, in breaking down and removing a certain gate thereon between her lands and the lands of her husband immediately adjoining on the south, and lying on and along said highway. The defendants, after setting up various matters in defense, interposed a plea of title to the locus in quo, and thereupon the action was certified to the circuit court for trial. Trial of the issues by jury was waived, and, after hearing, the circuit court found, in substance, that April 1, 1890, one Saxby was the owner in fee of the premises in question, with other lands on the east thereof; that April 12, 1890, he sold and conveyed to Otto Schmelling the east five acres, being a strip 52 rods in length north and south, by 15 rods 6 1/3 feet east and west, “together with the right of way, one rod wide, extending from the southwest corner of said five acres west, along the north line of land owned by William Wille, to the public highway;” that April 20, 1890, said Saxby conveyed to the defendant Julius Bartz the remainder of said land, and adjoining that sold to Schmelling, of the same length and breadth, “excepting and reserving a right of way one rod wide along the south side thereof, and also including a right of way one rod wide from the southwest corner of said land, along and adjoining land of William Wille, to the public highway;” that on the 19th of July, 1890, said Saxby sold and conveyed to Elizabeth Green the east five acres of that part of said land still owned by him, of the length and width of that conveyed to Bartz, with a right of way one rod wide from the southwest corner of said five acres west to the highway, and excepting and reserving to all persons a right of way one rod wide on the south side of said five-acre tract; that on the 9th of October, 1890, Saxby sold and conveyed to Harry F. McLean the east part of that part of said lands then owned by him, and next adjoining that sold to Elizabeth Green, being of the same length and width as that sold to Schmelling, excepting a right of way one rod wide across the south end of said premises next to said Wille's land, and including a right of way one rod wide from the southwest corner of said premises west to the highway; that on the 20th of April, 1892, Saxby sold by contract, to the plaintiff, the remaining part of said tract owned by him, and west of and adjoining that sold to said McLean, and extending to said highway on the west, excepting and reserving therefrom a right of way one rod wide along the south side thereof along the land of said William Wille; that all of said lands above mentioned were and are used for agricultural purposes only; that plaintiff's husband has a dwelling upon his land, located just south of the lands sold to the plaintiff by said Saxby, which he occupied with his family, and that there is no dwelling house upon either of said other pieces; that the public highway on the west of said lands passed from Indian Ford to Edgerton, but there was no highway on the east thereof;...