Fritsche v. Fritsche

45 N.W. 1088, 77 Wis. 266, 1890 Wisc. LEXIS 188

• Court: Wisconsin Supreme Court
• Decided: June 21, 1890
• Status: Published

Opinion

LyoN, J.

There is no controversy concerning the plaintiff’s right of Way from Ms residence to Barrette’s corner, point G. He travels upon Ms own land to that pomt, and is content to do so. The question in controversy is whether he has a right of way from that point to the old way at B, and along the same to the Bridgeport road at C, or whether such right of way extends from G to D, between the plaintiff’s fence and Barrette’s north line, to a point near defendant’s east line, and from thence north, along that line, to the Bridgeport road at E.

The terms of the defendant’s grant of the right of way to the plaintiff are somewhat ambiguous in respect to the location thereof. The location therein specified is “ on or near the line between Cha/rles Fritsche and Peter Barrette.” The Bridgeport road on defendant’s land, at the nearest point, is probably about twenty rods distant from tbe boundary line between tbe lands of tbe defendant and Barrette. Hence, to answer tbe calls of tbe grant, tbe right of way in question would necessarily have to diverge that distance from sucb boundary line. Tbe question is, "Where shall sucb divergence commence? Hoes it commence near tbe points, G- and B, as claimed by plaintiff, or near point D, as claimed by tbe defendant? Its extension to tbe Bridgeport road at either point is “ near ” tbe boundary line mentioned in tbe grant, within its obvious intent and meaning, and fulfills tbe terms and requirements thereof. ■

By erecting tbe fence between B and C, in 1874, tbe defendant fixed tbe northern limit of tbe right of way. He also permitted tbe plaintiff, without objection, to use and enjoy tbe same along tbe south side of the fence contiguous thereto, for many years. Thus, by bis own voluntary act and long acquiescence, tbe defendant gave a construction to bis grant, and practically explained tbe ambiguity in its terms. Tbe plaintiff adopted that construction by constantly using sucb right of way from B to C along tbe south side of tbe fence. It must be held that sucb right of way is established on that line.

It cannot be doubted that tbe plaintiff has a right of way over some line from bis own land to point B, for without it be would have no use of sucb right from B to C. Over what fine may be exercise this right ? Tbe answer seems plain. He may exercise it over tbe shortest practicable fine extending from bis own land to point B. This is a reasonable adjustment of tbe rights of tbe parties to tbe altered conditions growing out of tbe correction of tbe boundary line, because it saves tbe grant, and at tbe same time does tbe least possible injury to tbe defendant. Tbe defendant has obstructed sucb line by erecting a fence across it, and has thus deprived tbe plaintiff of bis right of way. Hence tbe latter is entitled to recover in this action, and tbe judgment in bis favor for nominal damages should not be disturbed.

Tbe material facts in tbe case being practically undisputed, and tbe right of tbe plaintiff to recover in tbe action being clear, tbe numerous exceptions taken by tbe defendant on tbe trial are óf no importance and will not be determined.

By the Court.— Tbe judgment of tbe circuit court is affirmed. .