The following opinions were filed January 9, 1912:
Baenes, J.
His Honor, Mr. Justice Vinje, tried this, case while on the circuit bench, and is therefore disqualified from talcing part in the decision on the appeal in this court. Justices Siebeckee, Keewin, and Timlin are of the opinion that the judgment of the circuit court should be reversed. Chief Justice Winslow, Justice Maeshall, and the writer are of the opinion that the judgment appealed from should [121]*121be affirmed. There being an equal division of tbe members of tbe court qualified to participate in tbe decision, as above indicated, tbe judgment of tbe circuit court must be affirmed.
By the Court. — It is so ordered.
Timlin, J.
Tbis case is affirmed upon equal division between tbe six qualified members of tbis court. Nevertheless I think it advisable to make a memorandum of tbe reasons which led me to vote for reversal.
In tbis ease tbe plaintiff owned a piece of land about 400 feet in width abutting on tbe east side of a public highway. On tbe west side of tbis highway lies Lake Geneva, a meandered navigable body of water.
It was contended by tbe plaintiff and tbe court found that a narrow strip of the plaintiff’s land extended west' of tbe highway and between tbe western boundary of tbe highway and tbe waters of Lake Geneva. Tbe highway was sixty-six feet wide and skirted tbe lake for some distance. Tbe plaintiff desired to connect bis land with tbe waters of tbe lake by a ditch across tbe highway and applied to the town board of supervisors for permission so to do, and that board refused permission by declining to take any action granting such permission. Tbe circuit court found that' prior to tbe commencement of tbe action tbe defendants, who are tbe supervisors of tbe town of Linn, threatened to prevent tbe plaintiff from constructing and maintaining a tunnel or subway upon bis land under said highway, and "that a tunnel or subway constructed according to plans and specifications annexed to tbe findings and according to tbe findings would not unreasonably interfere with tbe public easement. Conclusions of law and a judgment followed, tbe judgment perpetually restraining tbe defendants from in any wise interfering with tbe plaintiff in tbe construction or maintenance of said tunnel or subway or tbe use thereof, “provided, however, that tbe foregoing is conditioned as follows: (A) That tbe plaintiff [122]*122shall at his own expense construct and maintain such tunnel or subway according to the plans and specifications hereto annexed, made a part of this judgment and marked ‘Exhibit A,’ and provided that in the construction and maintenance of said tunnel the plaintiff shall not in any manner interfere with or obstruct the travel upon said highway, or in any way injure or damage tké same except in so far as it may be necessary and proper in the proper maintenance and construction of said specified tunnel or subway, and that in no event shall the height of the top of the floor of said tunnel or subway be more than two feet above the present grade of the macadamized portion of the present highway adjacent t'o said tunnel or subway, which shall be graded by the plaintiff on either side of said tunnel or subway, uniformly a distance of 100 feet for each two feet so raised; and provided further, that said plaintiff shall extend the width of the bridge over said tunnel or subway whenever the town authorities shall widen the macadamized highway approaching said tunnel or subway.” Attached to the judgment is a plan or blueprint of the proposed bridge approved and authorized by the court to be constructed, the same being a duplicate of the plan or blueprint' attached to the findings. This plan shows an open ditch fourteen feet wide with a depth in it of four-and one-half feet of water, and a space between the water level and the overhead planking of the bridge of thirty inches. The bridge is to be of steel and concrete. It is given in front view and cross-section and is twenty-eight feet in width east and west or across the traveled part of the road and carries on its east and west sides a concrete or stone fence or guard. At the place proposed for this crossing of the highway the ground is level, and the fill of the highway is not over two feet above the natural level on either side.
This is called a tunnel or subway. It is in fact an open ditch sixty-six feet in length, fourteen feet wide, and four and one-half feet deep extending clear across the highway, [123]*123with the middle twenty-eight feet thereof, corresponding in width to the graded portion of the highway, covered by an ordinary bridge. It seems to be called a tnnnel or subway for the purpose of bringing the case within sec. 1346, Stats. (1898), which provides:
“Any person owning land lying on both sides of any highway is hereby authorized to construct a tunnel under such highway, also the necessary fences for the passage of stock, and other purposes, to and through the same, in such manner as will not interfere with or endanger travel on such highway. All such tunnels shall not be less than twenty-live feet in length and shall be maintained by the person constructing the same, and the owner of such property shall be liable for all damages which may be occasioned by reason of the failure to keep the same in repair; provided, that the electors of any town at an annual town meeting may by vote authorize the construction of any designated tunnel therein of the length of not less than sixteen feet. The chairman of every town shall see that all tunnels in his town are made in accordance with the provisions of this section and that they are kept in good repair.”
It was not the purpose of the plaintiff t'o construct any tunnel. He wished to dig a ditch across the highway fourteen feet wide and of sufficient depth to permit him to float ice from Lake Geneva across the highway to his ice house situated on the east side of the highway, and to construct a bridge over this ditch to accommodate the public travel along the middle or traveled portion of the highway. Manifestly he is in no wise aided by the tunnel statute above quoted, for the sufficient reason that this is not a tunnel. This ditch remains open the whole width of the highway, except that the twenty-eight middle feet thereof are spanned by the bridge in question.
I think under sec. 819, Stats. (1898), which provides that the supervisors shall have charge of all the affairs of the town not by law committed to other officers; by sec. 1223, which provides that the supervisors of the several towns shall have [124]*124the care and supervision of all highways and bridges therein, and that it shall be their duty to appoint town superintendents of highways, who shall under their direction construct and repair all highways and cause all obstructions to be removed therefrom, and empowers the supervisors to require the superintendents of highways from time to time to perform any of the duties required of the latter by law; authorizes the supervisors to assess the highway taxes, to divide their town into highway districts, and to lay out and establish highways; and by secs. 1224, 1225, and 1226 and other sections to exercise control over highways, the town supervisors have the decision of such matters. See. 1339 makes the town liable in damages for injuries caused by defects in the highway, and sec. 1330 authorizes the supervisors to order encroachments removed, and sec. 1326 orders their subordinates who act under their direction to cause obstructions to be removed. Consequently the supervisors in this state have and exercise by law a discretion in the matter of allowing such a ditch as here described to be constructed in the highway, and that discretion is not reviewable by the circuit court.' I believe that under such statutes the law is correctly stated in McCarthy v. Pennsylvania L. & I. Co. 5 Pa. Super. Ct. 641, as follows:
“The control of streets or roads and the grades and changes made thereon are not to be determined by the abutting owners, but are by statute placed under the control of the local municipal authorities. It follows that, an abutting owner has no right to take possession of a public road or street and change its grade without authority from the body having it under statutory control.”
See, also, Snively v. Washington Tp. 218 Pa. St. 249, 67 Atl. 465, 12 L. R. A. n. s. 918; Bybee v. State, 94 Ind. 443; Congreve v. Smith, 18 N. Y. 79; Lansing v. Smith, 8 Cow. 146; Comm. v. King, 13 Met. 115. None of the other cases brought to our attention relative to the title of an abutting [125]*125owner in the highway subject to the pnblic easement tonch this question. I concede this title of such owner. Numerous dicta are quoted to us to support the judgment of the court below, but they are all beside the question. The case illustrates the prevalent vice of trying to build up law by a series of quotations detached from the subject matter under investigation in the instances in which the quoted language was employed. By all well considered precedents the public interest is paramount to that of the abutting owner. He holds subject to that public interest and statutes regulating it. I find it adjudged in Davis v. Pickerell, 139 Iowa, 186, 117 N. W. 216, that the landowner who has exercised the right granted by the supervisors and constructed a cattle-way under the highway cannot abandon the same and construct another at .a different location without new action of the supervisors. This was adjudged under a statute which permitted the board of supervisors to grant the right to construct a cattle-way across, over, or under any public highway, and perhaps loses some force because of this form of the statute. The instant case depends in this respect upon the construction of our statutes, and if our statutes commit the care and control of the highways to the local boards of supervisors, it follows that any one invading and disturbing the surface of that highway or making excavations therein which might interfere with the public use of the highway between its boundaries, or cause liability of the town for damages, must obtain the consent of the administrative officers in control. The courts cannot give this consent. The power is by law lodged elsewhere and is discretionary. It will scarcely be claimed that the courts are authorized to award this judgment specially to Mr. Lawler. If not, then every abutting owner may ■cut the level highway by a ditch and build a bridge over the ditch as a matter of legal right, provided he can convince a •court that such action will not seriously interfere with public travel. Each of Mr. Lawler s neighbors along this road [126]*126can. do so. Mr. Lawler and each, of his neighbors must cut through the beach which lies between ordinary high and low water mark, and which does not belong to him but' to the state, in order to reach the navigable waters. The result is confusion. If I could imagine such power in the circuit court under our statutes this would be an improper case for its exercise. This power is not committed by law to the courts. Nor can the courts exercise1 administrative power, fix grades, approve plans, and regulate that which is given to other and different officers for regulation. The judgment, herein is not a judgment but an exercise of administrative authority. The acts performed by the circuit court were administrative acts, as much so as laying out a highway, granting a .saloon license, or fixing a plan for street railway tracks. It is not necessary to cite authorities in support of this proposition, but it is worthy of note that the jurisdiction which the circuit court, without any statutory grant of power, so easily assumed in the instant case was rejected and disclaimed by other courts even when the statute expressly conferred it. Such statutes were held unconstitutional as attempting to confer administrative power on the courts. Norwalk St. R. Co.’s Appeal, 69 Conn. 576, 37 Atl. 1080, 38 Atl. 708, 39 L. R. A. 794; Moynihan’s Appeal, 75 Conn. 358, 53 Atl. 903; Spencer’s Appeal, 78 Conn. 301, 61 Atl. 1010; Beard’s Appeal, 64 Conn. 526, 30 Atl. 775; Smith’s Appeal, 65 Conn. 135, 31 Atl. 529; Ives v. Goshen, 65 Conn. 456, 32 Atl. 932; Nash v. Glen Elder, 81 Kan. 446, 106 Pac. 292. This is the rule of the federal courts also.
One of the grounds upon which Sir Edwaed Coke was removed from the office of Chief Justice of England was his interference by judicial decisions with the administrative duties of the commissioners of sewers. Chief Justice Moun-tague, who succeeded him,' was upon his appointment to that office admonished in the quaint style of those days to hear causes with patience; bear with the prolixity and impertinent [127]*127discourse of lawyers; ensue tlie good and eschew the evil examples; and to imitate the virtues of his worthy grandfather, Sir Edwaed Mouittague, who never vaunted that he would make latitats latitare; nor arrogated to himself the high title of Capitalis Justitia Anglise; nor devised new constructions of laws against the commissioners of sewers, “disputing of tricks and moote points concerning taxes, and making new gutters or walls.” Moore, 825 et seq.
I come to this conclusion on the hypothesis that Lawler owned a narrow strip of land west of the highway and between that and the waters of Lake Geneva. But I will add further that I have carefully examined the evidence as to such ownership, and I think it is shown almost to a demonstration that Lawler’s land does not at the place in question extend west of the highway as laid out.,
The appellants moved for a rehearing.
In support of the motion there was a brief by John B. Simmons and Charles S. French, attorneys, and Thomas M. Kear-ney, of counsel; in opposition thereto a brief by Burr W. J ones and J. L. O’Connor.
The motion was granted on March 12, 1912, and the cause was reargued on April 27, 1912.
Eor the appellants there was a brief by Charles S. French, Simmons ■& Walker, and Thomas M. Kearney, and oral argument by Mr. Simmons and Mr. Kearney.
Burr W. Jones and J. L. O’Connor, for the respondent.
The following statement of facts and opinion were filed June 4, 1912:
This is an action in equity brought by the owner of land bordering on the eastern end of Lake Geneva to enjoin the town supervisors of the town of Linn in Walworth county from hindering or preventing him from constructing a channel, or covered waterway, under and through a highway of the [128]*128town, and thus connecting the waters of the lake with the plaintiff’s land on the east side of the highway. The first and fundamental question in the case is as to the correct location of the highway in question. It is admitted that it skirts the lake in front of the plaintiff’s property, and the defendant supervisors claim that it extends to the eastern edge of the lake at ordinary high water, while the plaintiff claims and the trial court found that there is a strip of land or beach from twenty-five to thirty-five feet in width owned by the plaintiff between the west line of the highway and the eastern edge of the lake. It is admitted that if there be any land between the west line of the highway and the lake it belongs to the plaintiff.
The plaintiff makes three claims, viz.: (1) that he has the right to construct the channel or tunnel under a written permit alleged to have been given by the three supervisors of the town of Linn to one Dennison, plaintiff’s predecessor in title, July 22, 1901; (2) that, inasmuch as the highway runs through his property, leaving part of his land on one side and part on the other, he has a common-law right to dig a ditch or channel across the highway and connect the two parcels by a waterway, building and maintaining such bridges as may be necessary to provide for public travel; (3) that he has a right to construct such a waterway under sec. 1346, Stats. (1898), which provides that “any person owning land lying on both sides of any highway is hereby authorized to construct a tunnel under such highway, also the necessary fences for the passage of stock, and other purposes, to and through the same, in such manner as will not interfere with or endanger travel on such highway.”
The plaintiff desired to erect an ice house on his land east of the highway and wished to construct the channel from the lake across the highway for the purpose of floating ice from the lake to his ice house. Before bringing the action he presented to the defendant supervisors a communication claiming [129]*129the right to construct the way under the Dennison permit, and accompanied the communication with designs and specifications for two bridges across the traveled part of the highway, either of which he offered to erect, as the supervisors might deem best. The supervisors refused even to consider the request, and the plaintiff thereupon commenced this action and obtained a preliminary injunctional order from a court commissioner restraining the defendants from interfering with the construction of the channel, and commenced work thereon. Upon making answer to the complaint the defendants obtained an order to show cause why the plaintiff should not be restrained from proceeding with the work until the decision of the case on the merits, together with a temporary restraining order. By stipulation of the parties the status quo was allowed to remain during the pendency of the action. There was a contest upon the trial between surveyors as to the correct location of the highway, which it appears was originally laid out' in 1839. The court found that there was in fact twenty-five feet of land belonging to the plaintiff between the highway and the edge of the lake, and held that the plaintiff was entitled to construct a tunnel or subway under the highway according to plans and specifications attached to the judgment and made part thereof.
The so-called tunnel or subway was in effect a bridge thirty-one feet wide over a water channel fourteen feet in width, extending across the highway. The bridge elevated the grade of the prepared way two feet, and the plaintiff was required to grade the highway 100 feet in each direction so as to bring it up to the proposed level of the bridge. The supervisors were enjoined from interfering with the plaintiff in the construction of the channel or tunnel, and from this judgment the defendants appeal.
Winslow, O. J.
The reargument which has been had in this case has cast new light on the case, at least to the mind of [130]*130the writer of this opinion, and especially is this true with regard to the question of the location of the highway.
All the members of the court were convinced on the first hearing that no rights could be claimed under the so-called Dennison permit, and they are all of the same opinion now. There may be more than one good reason which can be given for this conclusion, but there is certainly one which is entirely sufficient, and that reason is that the permit was never granted at a meeting of the town board. The testimony shows without dispute that the members of the board signed it individually at different times and places, and that no action ever was taken at any meeting of the board, either regular or special. It is well settled that where an act must be done by a board the action must be taken at a meeting at which all are present, or of which all have had proper notice, in order to make the action binding. McNolty v. Board of School Directors, 102 Wis. 261, 78 N. W. 439; Lisbon Avenue L. Co. v. Lake, 134 Wis. 470, 113 N. W. 1099.
As has been said in the statement of facts, the initial and fundamental question in the case is the question of the location of the highway which skirts the eastern end of Lake Geneva and crosses the western end of the plaintiff’s premises, which are 400 feet in width from north to south. The highway is frequently called the “beach road” by the witnesses, because it passes along the beach of the lake at only a slight elevation from the surface of the water for a distance of more than half a mile. If the western line of the highway reaches the edge of the lake in front of the plaintiff’s premises he cannot successfully claim the right to construct the waterway and bridge in question, either under common-law principles or the provisions of the “tunnel” statute, because in either case it is necessary that the party claiming the right, own 'property on each side of the highway.
The road in question was four rods in width, and is admitted to have been laid out in 1839. In May of that year a [131]*131petition for the laying out of a highway, commencing at the village of Geneva and running southerly to the Illinois state line, a distance of more than six miles, was presented to the commissioners of Walworth county,, and viewers were appointed who reported in October, 1839, in favor of the laying out of a highway pursuant to the petition, and accompanied their report with a map and survey made by a surveyor named Norris, who was also one of the viewers. The map and survey seem to have been accepted by the commissioners in the following January and ordered to be recorded, and the road was opened. The survey describes simply the center line of the highway and commences at the Illinois state line in the town of Linn at the southwest comer of section 35 in that town, proceeding thence north on the section line between sections 34 and 35 forty-six chains. It then diverges to the northeast through sections 35 and 26 to the southwest corner of section 24, thence north on the line between sections 23 and 24 one mile, between sections 14 and 13 one mile, and between fractional sections 11 and 12 nearly-half a mile to a point four chains south of the quarter corner on the west line of section 12. Erom this point (which is designated by the letter A on the map on page 133) it proceeds in a general northeasterly direction around the east end of Lake Geneva, there being a change of course at each of the points marked on the map by the letters A, B, O, D, E, F, G, H, I, and K.
The changes of course at the points G, D, and E are so slight that upon a small map they are not very noticeable, but there is a substantial change at each place. It is quite evident from mere inspection of the map that from the point 0 to the point F there was a deliberate following of the shore of the lake for some reason. The courses D to E and E to F are north 4 degrees and north 9 degrees 15 minutes west respectively. There is, however, a narrow strip of land represented as intervening between the highway and the lake. The plaintiff’s premises consist of a strip of land 400 feet in width from [132]*132north to south at the point D, 100 feet thereof being taken off from the south side of the southwest fractional quarter of section 1, and 300 feet thereof from the north side of the northwest fractional quarter of section 12. The survey attached to the map states that the line of the highway terminates “on the beach of 'Geneva Lake at the confluence of Center street of Geneva village plat with the Racine road” (the point marked L upon the map). It will be understood that the map herewith given is approximately a correct copy of that pail; of the map attached to the original survey which relates in any way to the present controversy, but that the letters A, B, C, etc., were not on the original map, but have been added for convenience of reference merely.
It appears by the testimony that in or about the year 1873 a considerable change was made in the north part of the highway. All that part lying in section 36 was discontinued and closed up, as well as about' twelve or thirteen chains in length of the north end of that part which lies in section 1, and the course of the highway was radically changed so that, beginning at a point nearly midway between the points G and H, it diverges sharply to the northeast and enters the village of Geneva on the south line of section 36, between eleven and twelve chains east of the south quarter-section corner of said section. Since the original laying out of the highway in 1839 the same has been constantly in use and has for all that time been the principal and only reasonably direct highway connecting the town of Linn with the village of Geneva (now city of Lake Geneva). None of the original monuments, stakes, or witness trees are now in existence. The surveyors who were sworn for the plaintiff and those who were sworn for the defendants commenced their surveys at the point A, and substantially agree that it is correctly located in the middle of the present traveled track of the highway. They also seem to agree that the first two courses of the road from A to 0 have been changed so that the road runs further to the west [134]*134than originally laid out. There has also been a change of the courses between E and G. Mr. Teeple, a civil engineer who made the principal survey for the plaintiff, testified that he found the quarter-section comer on the west side of section 12 without difficulty, and commenced his survey at' a point four chains south of that point on the west line of section 12, which line was practically the center of the highway as traveled. Using this line as his meridian, he ran a random line over the courses and distances named in the original survey of the road to the point H, where the road enters section 36. He found on consulting his copy of the original survey that this point was described as being 125 links east of the quarter-section corner on the south line of section 36, and, finding no stake in existence showing that comer, he proceeded to relocate the same from a monument which he found on the southeast corner of the section. Erom beginning to end of his random survey he found no stakes nor bearing trees, but ran the entire line simply by transit angles.and checked by compass readings. On locating the quarter-section comer by measurement from the southeast comer, he measured 125 links eastward from the comer so located and arrived at a point sixty-two and one-half feet east of his random line location of the point H. He then swung the whole random line over to the east, using the point A as the axis of the movement. At H the line was swung over sixty-two and one-half feet, and at the intermediate angles between H and A the distance of the swing eastward was determined according to the rules of proportion used by surveyors in such cases. Proceeding back southward over the line to make the corrections at the various angles, he found nothing in the way of witness or bearing trees to corroborate his new line at G or E, but found what he thought was the rotted remains of an oak stump near the angle E at a point about seven feet to the east of where the witness tree should be if the corrected line was right. Deeming this the witness tree named in the original survey, he then [135]*135swung tbe line seven feet further eastward at this point. At D he found some decayed roots of a tree in the swamp which he thought indicated that there had been a tree at a point about a foot or two from the location of the witness tree named in the notes, assuming that his corrected line was right. Not feeling certain of its exact location, however, he made no further change at D on account of the supposed witness tree, but used the new point at E to re-establish or correct the points D and O in the same manner that he had used the point H. He found no stakes or witness trees at B or C. The corrected line thus established by the witness Teeple is the line which the court found to be the center of the highway. In regard to this survey a number of facts, some of which appear from the evidence of Mr. Teeple himself, are pertinent. Mr. Teeple made no particular examination as to the lines of ancient occupation at any point along the route. At the point C his original random line is ten or twelve feet west of the center of the highway as traveled. From this point northward the random line runs more and more to the west of the traveled track and runs into the edge of the lake between E and E. At no place does he attempt to follow the line of the present traveled highway. At E the random line was moved thirty-six feet on account of the swing eastward made necessary by the change at H and the finding of the witness tree at E. At D the swing eastward was twenty-eight and one-half feet from the random line, and at C twenty-one and one-half feet. The corrected point E is somewhere from ten to fifteen feet east of the center of the present macadamized traveled track, which is about twenty-two feet in width. The corrected point D is about thirty-three feet east of the center of the present traveled track. From the south line of the plaintiff’s land (400 feet south of D) to the north line of his land (100 feet north of D) Mr. Teeple’s corrected line is •continuously to the eastward of the entire roadway as traveled from time immemorial, the greatest distance being at D, [136]*136where it seems to be somewhere from seventeen feet to twenty feet. In determining the section line between sections 1 and 12 Mr. Teeple found a stone monument near the point D. This monument was set under the fence between the two sections to mark the dividing line between the two sections by a surveyor named Beckwith many years ago. Mr. Teeple’s point D as corrected is four feet north and one foot to the west of that monument. This monument is about on the line of an old north and south fence extending about 150 feet noi’thward from the south line of the plaintiff’s property as well as upon the line of a well defined line of trees and bushes which taken together have for many years formed the apparent east boundary of the highway in front of plaintiff’s property. Eor most of the distance between the south line of the plaintiff’s land and the point E there is and always has been a. low ridge running along the margin of the lake on which the traveled'highway always has been located, and to the east of this low ridge is a marsh. It is claimed by the defendants that the point E. as corrected is in fact in the marsh, and the point D either in it or close to its edge. While it does not seem possible to exactly verify this claim, it is entirely certain that both of these points fall considerably to the eastward of the ridge and either in the marsh or on its margin. We are unable to ascertain from the evidence how Mr. Teeple’s corrected line agrees with the lines of occupation at Gr and.northward, because he admits that he paid no attention to such lines, and we do not discover that he gave any testimony even as to the approximate line of occupation at this point. Finally Mr. Teeple says that which is quite manifest, namely, that after fixing the point H his entire subsequent survey depends for its accuracy on the manner in which that point was fixed.
[133]*133
[136]*136The defendants’ surveyors did not attempt to make so ambitious a survey as Mr. Teeple’s. Mr. William Powrie, a civil engineer, testified that he started from practically the same point on the south as Mr. Teeple, using the west line of [137]*137section. 12 as a meridian, and ran courses northward according to the calls of the original survey. He also ran into the edge of the lake at about the point E. He became satisfied that there was a discrepancy somewhere from the fact that on computation of the eastings in the original Norris survey he found they amounted to but 38.73 chains up to the point H on the north line of section 1, and yet, according to the survey, this point was 125 links east of the quarter-post. He concluded that the last course on the survey, instead of being “north 28 chains and 50 links to a stake 125 links east of the quarter corner,” was not due north, but “northerly” to the point named. He then attempted to locate the north quarter corner of section 1 by measuring forty chains west from the northeast corner of the section, but the measurement brought him into a grass plat in front of a residence where there were nb indications of stakes, or monuments, or bearing trees, and no possibility of making search by way of excavations. Erom his forty-chain point he measured to the lake in an attempt to find the meander corner, and found the distance to be 5.29 chains, instead of 7.26 as stated in the original survey. He concluded that it was impossible to accurately locate the point H. He then concluded to survey that part of the road skirting the lake only, assuming that Norris made the original survey using the true meridian as required by the United States Statutes — Act of May 18, 1796 (1 U. S. Stats, at Large, 464: R. S. of U. S. sec. 2395) — instead of the magnetic meridian (which, according to the note in the survey, had a variation at that time of six degrees east). Carrying out this idea, he took the proper observations on Polaris and the sun, found the true meridian, located the angle at C by this meridian, and found that point to be practically in the center of the traveled track. He then ran the line according to the notes of the original survey to the point E. This line lay on the traveled track from C to a point about 725 feet north of 0, and about opposite the place where the channel is [138]*138to be located it diverges to the east of the traveled track for a distance of about 200 feet, the point D being about the middle of this last named stretch. At the point D the line so run is fifteen and one-half feet west of the stone monument on the east side of the road mentioned above in the description of Mr. Teeple’s survey. At the north line of plaintiff’s premises is another stone monument which is in line with trees and bushes apparently maiking the east border of the highway, and Mr. Powrie’s line is twenty-two feet west of the last named monument. As the line reaches the angle E it is exactly in the center of the traveled track, and at P is fourteen feet west of the center of the traveled track. Mr. Powrie was of opinion from the results obtained by him in using the true meridian that Mr. Norris used that meridian in his original survey.
Some pertinent facts are to be noted with reference to the Powrie survey. So far as concerns that part of the road which skirts the lake (and this is the principal part of the road which has never had its course changed by official action), it comes much nearer to the lines of actual travel which have existed from time immemorial than the Teeple line. At . the only points where there are any monuments it agrees more nearly with them than the Teeple line. At the point E there was a small inlet into the lake when the original survey was made, and the notes of the original survey state that a stake was planted on the north back of the inlet. A small bridge was at once constructed at this point and retained for a good many years, but finally was moved south some distance and the channel filled up. It seems natural that the bridge should have been constructed in the right place, for the stake was doubtless then in existence, and, if so, then it seems quite certain that the traveled road at this point is in the right place, and the evidence is clear that Mr. Powrie’s line is in about the center of the traveled road at E. Again, the Powrie line [139]*139at no point invades tbe swamp before spoken of, but follows tbe ancient ridge for practically tbe entire distance. .
There was another survey made by an engineer named Carlson, which agreed substantially with Mr. Powrie’s, but adds nothing materially to the strength of Mr. Powrie’s position. Mr. Teeple was assisted in his survey by a civil engineer named Haskins, whose testimony corroborates that of Mr. Teeple as to the manner of the survey, but adds nothing materially to it. Prof. L. S. Smith of the College of Engineering of the University of Wisconsin also consulted with Mr. Teeple after the latter’s survey, and made examination as to the remains of witness trees at D and E, corroborating Mr. Teeple’s claims as to the probable location of those supposed trees. He also corroborated Mr. Teeple as to the proper method of correcting a random survey when no monuments or •stakes are to be found.
After all is said and done, however, it must be admitted, we think, that the evidence of the surveyors is not very satisfactory. Were it not for other facts now to be considered, we certainly should not feel called upon to interfere with the findings of the trial court. One important fact, however, has developed from examination of the exhibits since the trial and decision •of the case below which would have presented quite a different question to the trial court. It was assumed from start to finish that the point H was located by Norris 125 links east of the quarter-section corner on the south line of section 36. Mr. Teeple’s entire corrected survey is founded on this fact. It now appears that it cannot be determined whether the distance was 125 links or 1.25 links. The question is, Was there a decimal point between the 1 and the -2 or not ? Two maps and surveys of the road were found to be on file in the office of the county clerk. Roth seem to be originals, and they seem to be substantially identical, except that in one the point H is described as “125 links” east of the quarter corner, and in [140]*140the other very plainly as “1.25 links” east of the same corner. One is indorsed “Minutes of road in Geneva filed this 6th day of October, 1840, ordered to be recorded,” with the word “recorded” below; the other is indorsed “Report of James A. Maxwell, Edward Norris, accepted this 7th day of Jan. 1840,. ordered to be recorded.” Both are dated October 24, 1839.
It is said, by respondent that there is a description of the highway in the records of the county surveyor’s office without a map which fixes the stake 125 links east of the quarter corner, but it is admitted that this was not introduced in evidence, although it was referred to by the surveyors in their evidence. Mr. Norris, it appears, was county surveyor when the survey was made. It is said by the respondent that the 1.25 is a palpable mistake; that no surveyor would make a. line terminate a distance of 1.25 links, or about ten inches, from a quarter comer. In corroboration of this contention they point to another distance in the survey where the distance to a bearing tree is given as 151 links in one survey and 1.51 links in the other, and they say that no surveyor would measure such a distance as the hundredth of a link. They then suggest that the first document described was intended to correct the second. These considerations seem plausible, and there are others which might be named, but. nevertheless we must face the fact that we do not certainly know which distance is correct. It may be more probable that 125 is correct, but it is not certain. This adds an element of confusion and doubt not present when the findings of fact were made, and what effect it might have had upon those findings we cannot know. The entire situation forcibly illustrates the danger of trying to relocate old lines by running courses, and distances with no known monuments as guides. Mr. Teeple finds some remains of roots seven feet from where they should be, and he conjectures that they are the roots of the witness tree described as existing more than seventy years ago; Mr. Powrie finds the call of 125 links does not correspond with the statement of eastings, and he conjectures that. [141]*141Mr. Norris used the true meridian instead of the magnetic; and now we are urged to conjecture that 125 is the true number of links rather than 1.25. This does not seem in any respect satisfactory. The principle is very familiar that resurveys of ancient lines by courses and distances, paying no attention to ancient occupation, is not a satisfactory method of arriving at the line. It has been correctly said that such surveys are entitled to little weight as against practical location of the line by fences or by occupation for a long series of years. If there be no original monuments in existence, but it appear that there has been occupation and that fences have been maintained for many years, it will be assumed that the lines of such occupation agree with the original occupation taken in accordance with the original survey soon after it was made while the stakes or monuments were in existence. This principle has been applied to highways as well as to lands privately owned. Vernon v. Nicolai, 125 Wis. 319, 103 N. W. 1111. It is a beneficent principle in that it makes for repose and settlement of rights, rather than for the reopening of acrimonious and expensive disputes with every new survey. It is a correct principle in that in the majority of instances it doubtless reaches results more,nearly in accordance with the original survey than any other method.
In the present case we are convinced that there is such cogent proof of practical location of the highway in question in front of the plaintiff’s premises that it must be held to overcome the testimony of the surveyors and settle the question adversely to the plaintiff’s claim. Especially does this result seem inevitable in view of the fact of the uncertainty of the location of the point II, upon which the accuracy of the Teeple survey wholly depends.
The facts as to this practical location are substantially undisputed and the more important facts may be briefly summarized as follows: The highway is a main traveled thoroughfare by which the inhabitants of the entire country south of the lake approach the city of Lake Geneva, and has been such [142]*142ever since it was laid out. Eor about half a mile it skirts the shores of Geneva Lake and has always been known as the “beach road/’ because it lies but little removed from the beach and only a few feet higher than the lake. As far back as any witness can remember, and many were called whose memory ran back thirty and forty or more years, the traveled way, about twenty feet wide,.has existed along this half mile of highway practically in the precise place in which it now is. Twenty-five or thirty years ago it was thoroughly macadamized by private enterprise, so that a roadbed twenty-two feet in width, placed directly over the old track, has existed since that improvement. There has never been any fence or evidence of private occupation on the west side of this traveled track in front of the plaintiff’s premises, nor does it appear that any one ever exercised any act of ownership there. There has always been a grassy strip of ten or twelve feet next to the traveled track, and then a beach varying in width from five or six feet at ordinary high water to ten or twelve feet at extreme low water’. On the east side of the traveled track there has likewise always existed a grassed space of from twenty to thirty feet in width (the widest point being at D) which has always apparently been a part of the highway. This space in early days was bounded by a rail fence succeeded by others of various kinds, which, while not making a mathematically accurate line, have all been substantially at about the same distance from the traveled track and at the edge of the grassy strip. An old post and board fence still remains on this line in front of the south 160 feet of the plaintiff’s premises. The grassy strip on the east side of the track has also been further bounded on the east by a thicket of trees and shrubbery in front of plaintiff’s premises coming out to the line of the old fence and by the marsh or slough further north toward the point E. The only witness who testified as to the distance of this old fence from the water in front of the plaintiff’s premises stated that he measured the distance at the point D in October, 1909, and found it to he eighty-one feet. He also [143]*143testified that at the place 'where the tunnel was begun, it was seventy-two feet seven inches, and on Mr. Loml&r’s south line seventy-three feet. What the height of water was at the time does not appear, bnt presumably it was low. Thus it appears to-be established beyond controversy that for an indefinite time in the past, probably well toward seventy years, there has been an open space of about four rods in width here, extending from the fence and thicket to the lake, having a twenty-foot traveled track near its center and bearing every appearance of an, ordinary country highway for its full width, and further that no one has ever (until the present time) set up a claim to any part of the space as private property.
This seems to us very strong evidence of practical location of the highway, a location which ought not to be upset by a mere survey depending on courses and distances, especially when such survey is founded upon a conjecture as to the location of a controlling point.
Furthermore, it appears that over this entire open space of approximately four rods in width the public has always, so far as any one can remember, exercised the right of travel, diverging from the traveled track when it was heavy and driving either on the grass to the east, or on the grass or hard sandy beach on the west, also driving into the water to water horses or set wagon tires, and in winter driving on to the ice to seek a shorter route to town. These latter acts are not particularly persuasive in themselves alone, but in connection with the other evidence as to the appearance and use of the entire strip they help to give character to that use.
We are not unmindful of the fact that upon the original map there appears to be a strip of land between the road as laid out and the lake, nor of the fact that the center of the highway at the point H appears to be considerably more than 1.25 links east of the quarter-post. These are facts entitled to be considered, but we have been unable to consider them as at all controlling.
The great and overshadowing fact remains that for nearly [144]*144or quite three score years and ten there has existed a strip of land about four rods in width which has had every appearance of a highway, and has been used as a highway for it's whole width, and which has never been claimed as subject to private ownership, but has had a boundary on the one side of a fence and on the other of a navigable lake.
We do not consider it necessary to split hairs as to the exact width of this strip. At times when the water has been low it seems to have been a few feet more than four rods in width; at other times it has doubtless been less. ' It is quite difficult, if not practically impossible, to fix the exact point of ordinary high water where the bed of the lake begins. C. Beck Co. v. Milwaukee, 139 Wis. 340, 120 N. W. 293. We regard the whole strip opposite the plaintiff’s premises from the fence and thicket line westward to ordinary high-water mark as constituting the highway by practical location which has existed unchallenged for so many years that it would be unjust to the public to now change the lines because of surveys whose accuracy can never be demonstrated.
We hold, therefore, that under the evidence the plaintiff owns no land west of the highway, and hence has neither a common-law nor statutory right to a tunnel or channel under or across the highway. This renders it unnecessary to pass upon any other questions presented.
By the Court. — Judgment reversed, and action remanded with directions to render judgment for defendants, dismissing the complaint with costs.
ViNJE, J., took no part.
The following opinion was filed June 10, 1912:
The point covered by and decided in the opinion of the court written by Chief Justice WiNsnow is included in and part of the more comprehensive theorem ad[145]*145vanced by Justices Siebeckeb, Keewiit, and the writer on the first argument. We all understand, I think, that where there are different, opposite, abutting owners, the title of each, subject to the public highway easement, extends to the center of the highway. But where one person owns abutting land on both sides of a highway, or where a person owns land abutting on one side of a highway, which highway extends in width from such land to or below ordinary high water of a navigable body of water, he owns all the land covered by the highway, subject to the highway easement. To the learned lawyer this note is entirely unnecessary; but there are others to whom it may be a benefit.
The following opinion was filed June 20, 1912: