Witter v. Damitz

• Decision Date: 23 February 1892
• Citation: 81 Wis. 385,51 N.W. 575
• Parties: WITTER v. DAMITZ ET AL.
• Court: Wisconsin Supreme Court

81 Wis. 385

51 N.W. 575

WITTER

v.DAMITZ ET AL.

Supreme Court of Wisconsin.

Feb. 23, 1892.

Appeal from circuit court, Wood county; CHARLES M. WEBB, Judge.

Action by F. L. Witter against F. Damitz and others. Judgment for defendants. Plaintiff appeals. Affirmed.Cate, Jones & Sanborn, for appellant.

Geo. L. Williams, for respondents.

ORTON, J.

The facts of this case are substantially as follows: The plaintiff was in possession of the S. 1/2 of N. E. 1/4 of section 8, township 22, range 5 E., Wood county, and town of Seneca. In 1873, Peter Newell was the owner of the land, and assisted in laying out a road from the west, in a somewhat circuitous course through the land, and fenced out the same, and continued to occupy the land so fenced, and help his neighbors work said road, until 1881, when he sold the land to one Morehead, who continued to occupy the same in the same way, in respect to said road, until 1884. The road was used and worked each year continuously for more than 10 years from said year 1873. The road was used by the people west of this land, to travel on in going to Centralia and Grand Rapids, and there was no other. In 1885 the town attempted to change this road to the north line of this land, and on the section line towards the east, and it was opened and worked part of the way, until it came to an impassable bog marsh, extending some distance east. From that point the new road has never been opened, worked, or used, and the travel had to pass down to the old road through this farm; and so it has continued to be used, all the time since 1873, until the plaintiff fenced it up on her land in October, 1889. The town directed the defendant Damitz, as path-master, to remove this obstruction from the highway, which he proceeded to do by the assistance of the other defendants, in November, 1889, which constitutes the trespass complained of in this action. While the obstruction remained, there was no road for the travel through or around this impassable bog. These were the facts substantially found by the court, and a nonsuit was ordered. This case is presented in the brief of the appellant's counsel wholly on its merits under the law. No exceptions are discussed on either side. The learned counsel of the appellant contend:

1. That the old road running through the plaintiff's land was never a legal highway. The evidence is undisputed that Peter Newell, the former owner of this land, assisted in laying out this old highway, and then adjusted his fences to suit the same, and, with others, did work on the same from year to year. These were unequivocal acts of dedication of the land to the use of this road. Morehead, his successor in the title, also recognized it as a highway, and never objected to the same, and for over 10 years it was so worked and used as a highway, with the knowledge and assent of the owners of the land. This makes a legal highway. Connehan v. Ford, 9 Wis. 240. The public use of the road after such dedication need not be for a very long time to establish it. And the fact that there may have been...