Gleason v. Burroughs

63 N.W. 292, 90 Wis. 316, 1895 Wisc. LEXIS 283

• Court: Wisconsin Supreme Court
• Decided: May 15, 1895
• Status: Published

Opinion

Winslow, J.

The evidence seems to fully sustain the? findings of fact made by the trial judge. It was clearly shown that the necessary width of a right of way for teams was ten feet. The deed, therefore, made by Littlejohn to the plaintiff in November, 1887, and at once recorded, conveyed a right of way over ten feet of land adjoining the race; and if Littlejohn then owned that strip of land the plaintiff acquired a right of way which .no subsequent deed of the fee could affect. The subsequent deed made by Little-john to the defendant, which in terms attempts to convey a part of this strip, cannot in the least impair the plaintiff’s, right to the free and unobstructed use of his right of way.

The claim that the defendant owns the land to the bank of the mill race, by virtue of her title derived from Kimball,, cannot be maintained. The lands conveyed by this deed are described by distances and measurements from a certain lot in the recorded plat of the village of Waukesha, and not by monuments or natural objects. These measurements and distances do not reach or touch upon the ten-foot strip in question. The fact that a right of way is reserved across-the north end of the piece deeded, and that there is a provision that she must build and maintain an embankment thereon, does not extend the terms of the grant. There-is nothing in the deed which shows an intention to convey any greater amount of land than is specifically included in the distances and measurements. Nor does the evidence show any title acquired by the defendant by adverse possession. This being the case, the defendant’s fence was clearly an encroachment on the plaintiff’s right of way.

By the Court.— Judgment affirmed.