Bjgewiit, J.
A great many errors are assigned by appellants upon exceptions to the findings of fact and conclusions of law, but as we understand them they may all be classified under four heads: (1) Was the highway legally laid out four rods wide? (2) Is there sufficient competent evidence to support the findings as to the location of the section line between sections 23 and 24? (3) Is the highway in question a highway by user ? And (4) shohld costs have been awarded to the defendants ? If we correctly understand the appellants’ brief, the foregoing propositions cover the material contentions of the appellants. After setting out the various assignments of error they state the controversy thus:
“The real questions litigated on the trial of this case in the court below were whether there was a highway by user, or whether said highway had been legally laid out and established by the road commissioners of the town of Oconomowoc,, at the place where plaintiff erected his fence mentioned in his complaint, and whether or not plaintiff had a legal right to erect said fence where he did, and whether or not the defendants were justified in removing said fence in the manner in which they did.”
1. It is first contended that the highway was not legally laid out, for the reason that the petition did not show that [552]*552the petitioners were freeholders residing in the town, and, further, that the survey is insufficient as an order laying out the highway, the petition and survey being the only records produced. It is the opinion of the court that after the lapse ■of time since the highway was laid out it must be presumed that the petitioners were freeholders residing in the town and the survey a sufficient order, under the rule laid down by this court in Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819. It seems, that in finding a four-rod highway the court considered that the established width of public highways at the time the highway in question was surveyed was, and since has been, four rods, and that the line run by the surveyor should be the center of the highway. Terr. Laws of 1840, p. 33, No. 24, § 5. See, also, Laws of 1843, pp. 46-50, § 23; R. S. 1849, ch. 16, sec. 70; ch. 19, sec. 74, R. S. 1858; secs. 1264, 1294, Stats. (1898). So it seems the survey sufficiently described the width of the highway as four rods. State v. Hogue, 71 Wis. 384, 36 N. W. 860. The important question is whether the recording of the survey was sufficient evidence of the laying out of the road. It definitely described the line of the road throughout, and runs on the section line -east of plaintiff’s property between sections 13 and 14, 23 ■and 24. It is signed by the surveyor and the road commissioners, dated March 16, 1847, and is indorsed “Survey of Road.” The survey begins by reciting, “Survey of a public road for the town of Oconomowoc,” and then follows a ’description of the line from beginning to end. The petition to the road commissioners of the town to lay out the highway and the survey were recorded in the town records.
The road in Randall v. Rovelstad, supra, was opened by ■county'Commissioners under Terr. Stats. 1839, p. 107, sec. 4 of which provides for the appointment of viewers, and sec. 5 provides that said viewers, or a majority of them, shall view the route proposed, and, if deemed a public utility, shall lay out and mark such road on the best ground obtainable; and» [553]*553-sec. 6 provides that the viewers, or a majority of them, shall make a certified copy of their proceedings to the ensuing session of the hoard, when the same shall he publicly read, ■and if no objection is made to such proposed highway the board shall cause a record thereof to be made and order the road to be opened and repaired a necessary width, not exceeding sixty-six feet. TJnder this law it was held in Randall v. Rovelstad, supra, that the filing of the survey at a date more than forty years anterior to the time, of trial was sufficient evidence that a highway had been laid out. As we have seen, sec. 6, p. 107, Ten’. Stats. 1839, provides merely that a record shall he made of the highway, but it does not require a copy of the order to bé filed, nor does it require that the survey shall embrace a copy of the order, and it was therefore held that because of the great lapse of time a record of the survey ■describing the road was sufficient evidence that it had been laid out. Ih the case before us, obviously, a road was laid ■out, not by county commissioners under the Statutes of 1839,' but by the town commissioners under the Laws of 1843, and, as will be seen, the proceedings were somewhat different. The law required a petition to be made to the commissioners •of the town by six or more freeholders, and further provided that whenever the commissioners of highways shall lay out a road they shall cause a survey or description to be made of such road and shall incorporate such survey in an order to be signed by them and filed and recorded in the office of the town clerk, who shall note the time of receiving the same. Laws óf 1843, p. 46, §§ 1, 2. So it will he seen that under the.. Laws of 1843 the commissioners of highway in towns were required, when they laid out a road, to incorporate the survey in an order laying out the same and file it with the clerk., So that in this regard this law differs from the law under which the road whs laid out in Randall v. Rovelslad, supra. However, it is the opinion of the court, in view of the great lapse of time since the filing .of the petition and survey in the [554]*554instant case and the fact that the road had been opened and' traveled, at least partially, upon the line described in the-survey, that the survey must be regarded as an ancient document and all proceedings leading up to the making of such survey presumed to have been regularly taken; that the-statute (§§ 1, 2, Laws of 1843) contemplates that the road shall be first laid out before the survey is made, and, notwithstanding there was not a strict compliance with the-statute in the recording of an order embracing a copy of the-survey, that the order must have preceded the survey and have been in existence and regularly made at the time the-survey was made and recorded, though not incorporated in the survey; that the statute (§ 2) to the effect that whenever the commissioners of. highways shall lay out any road they shall cause a survey or description to be made of such road means that the laying out of the highway shall precede the-survey, and that since the survey was made and filed it must be presumed that all anterior steps leading up to the making- and filing of the survey were regularly taken. Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819. True, at the point in question on the section line between sections 23 and 24 the road was traveled on the west side of the section line only, but this would not operate to change the limits of the road as laid out. Maire v. Kruse, 85 Wis. 302, 55 N. W. 389; Reilly v. Racine, 51 Wis. 526, 8 N. W. 417; Randall v. Rovelstad, supra.
2. The next question is whether the evidence is sufficient to support the finding on the location of the section line-between sections 23 and 24. The claim of the appellants would throw the line farther west upon 'the property of the plaintiff and thereby shift the highway farther west. This point was strenuously contested on both sides and several surveys made and a mass of evidence offered, and the court below in its findings found in favor of the respondent on this proposition and adopted what was known in the case as- the-[555]
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Bjgewiit, J.
A great many errors are assigned by appellants upon exceptions to the findings of fact and conclusions of law, but as we understand them they may all be classified under four heads: (1) Was the highway legally laid out four rods wide? (2) Is there sufficient competent evidence to support the findings as to the location of the section line between sections 23 and 24? (3) Is the highway in question a highway by user ? And (4) shohld costs have been awarded to the defendants ? If we correctly understand the appellants’ brief, the foregoing propositions cover the material contentions of the appellants. After setting out the various assignments of error they state the controversy thus:
“The real questions litigated on the trial of this case in the court below were whether there was a highway by user, or whether said highway had been legally laid out and established by the road commissioners of the town of Oconomowoc,, at the place where plaintiff erected his fence mentioned in his complaint, and whether or not plaintiff had a legal right to erect said fence where he did, and whether or not the defendants were justified in removing said fence in the manner in which they did.”
1. It is first contended that the highway was not legally laid out, for the reason that the petition did not show that [552]*552the petitioners were freeholders residing in the town, and, further, that the survey is insufficient as an order laying out the highway, the petition and survey being the only records produced. It is the opinion of the court that after the lapse ■of time since the highway was laid out it must be presumed that the petitioners were freeholders residing in the town and the survey a sufficient order, under the rule laid down by this court in Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819. It seems, that in finding a four-rod highway the court considered that the established width of public highways at the time the highway in question was surveyed was, and since has been, four rods, and that the line run by the surveyor should be the center of the highway. Terr. Laws of 1840, p. 33, No. 24, § 5. See, also, Laws of 1843, pp. 46-50, § 23; R. S. 1849, ch. 16, sec. 70; ch. 19, sec. 74, R. S. 1858; secs. 1264, 1294, Stats. (1898). So it seems the survey sufficiently described the width of the highway as four rods. State v. Hogue, 71 Wis. 384, 36 N. W. 860. The important question is whether the recording of the survey was sufficient evidence of the laying out of the road. It definitely described the line of the road throughout, and runs on the section line -east of plaintiff’s property between sections 13 and 14, 23 ■and 24. It is signed by the surveyor and the road commissioners, dated March 16, 1847, and is indorsed “Survey of Road.” The survey begins by reciting, “Survey of a public road for the town of Oconomowoc,” and then follows a ’description of the line from beginning to end. The petition to the road commissioners of the town to lay out the highway and the survey were recorded in the town records.
The road in Randall v. Rovelstad, supra, was opened by ■county'Commissioners under Terr. Stats. 1839, p. 107, sec. 4 of which provides for the appointment of viewers, and sec. 5 provides that said viewers, or a majority of them, shall view the route proposed, and, if deemed a public utility, shall lay out and mark such road on the best ground obtainable; and» [553]*553-sec. 6 provides that the viewers, or a majority of them, shall make a certified copy of their proceedings to the ensuing session of the hoard, when the same shall he publicly read, ■and if no objection is made to such proposed highway the board shall cause a record thereof to be made and order the road to be opened and repaired a necessary width, not exceeding sixty-six feet. TJnder this law it was held in Randall v. Rovelstad, supra, that the filing of the survey at a date more than forty years anterior to the time, of trial was sufficient evidence that a highway had been laid out. As we have seen, sec. 6, p. 107, Ten’. Stats. 1839, provides merely that a record shall he made of the highway, but it does not require a copy of the order to bé filed, nor does it require that the survey shall embrace a copy of the order, and it was therefore held that because of the great lapse of time a record of the survey ■describing the road was sufficient evidence that it had been laid out. Ih the case before us, obviously, a road was laid ■out, not by county commissioners under the Statutes of 1839,' but by the town commissioners under the Laws of 1843, and, as will be seen, the proceedings were somewhat different. The law required a petition to be made to the commissioners •of the town by six or more freeholders, and further provided that whenever the commissioners of highways shall lay out a road they shall cause a survey or description to be made of such road and shall incorporate such survey in an order to be signed by them and filed and recorded in the office of the town clerk, who shall note the time of receiving the same. Laws óf 1843, p. 46, §§ 1, 2. So it will he seen that under the.. Laws of 1843 the commissioners of highway in towns were required, when they laid out a road, to incorporate the survey in an order laying out the same and file it with the clerk., So that in this regard this law differs from the law under which the road whs laid out in Randall v. Rovelslad, supra. However, it is the opinion of the court, in view of the great lapse of time since the filing .of the petition and survey in the [554]*554instant case and the fact that the road had been opened and' traveled, at least partially, upon the line described in the-survey, that the survey must be regarded as an ancient document and all proceedings leading up to the making of such survey presumed to have been regularly taken; that the-statute (§§ 1, 2, Laws of 1843) contemplates that the road shall be first laid out before the survey is made, and, notwithstanding there was not a strict compliance with the-statute in the recording of an order embracing a copy of the-survey, that the order must have preceded the survey and have been in existence and regularly made at the time the-survey was made and recorded, though not incorporated in the survey; that the statute (§ 2) to the effect that whenever the commissioners of. highways shall lay out any road they shall cause a survey or description to be made of such road means that the laying out of the highway shall precede the-survey, and that since the survey was made and filed it must be presumed that all anterior steps leading up to the making- and filing of the survey were regularly taken. Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819. True, at the point in question on the section line between sections 23 and 24 the road was traveled on the west side of the section line only, but this would not operate to change the limits of the road as laid out. Maire v. Kruse, 85 Wis. 302, 55 N. W. 389; Reilly v. Racine, 51 Wis. 526, 8 N. W. 417; Randall v. Rovelstad, supra.
2. The next question is whether the evidence is sufficient to support the finding on the location of the section line-between sections 23 and 24. The claim of the appellants would throw the line farther west upon 'the property of the plaintiff and thereby shift the highway farther west. This point was strenuously contested on both sides and several surveys made and a mass of evidence offered, and the court below in its findings found in favor of the respondent on this proposition and adopted what was known in the case as- the-[555]*555Hollo Powerie survey as the correct survey, and we think the finding is well supported by the evidence.
3. It is further contended by appellants that a highway by user was established over the land actually used west of the section line. The court below found upon sufficient evidence that the highway was traveled by the general public for over twenty years west of the center line of the highway as laid out and to a width of one and one-half rods from the section line, except in one or two places where the travel slightly diverged. This contention brings us again to the-question whether the highway was legally laid out four rods-wide; and, this court holding in this case that it was, it is only called upon to further consider the effect of divergent travel along the general course of the highway for upwards-of twenty years. The argument of appellants under this head is that the only lawful highway existing is the one which has been actually used; and, as we understand their argument,, they base it upon two grounds: Pirst, that, there being no-highway laid out, one could be acquired only by user; and second, that even if a lawful highway had been laid out it was abandoned by nonuser. The court has already disposed of the first proposition by holding that a highway was laid out. Upon the second proposition the court below found on ample evidence that fences have existed and been maintained for more than twenty years along the east line of plaintiff’s premises and at irregular distances from the center of the highway as surveyed and laid out and outside and west of the west line of the highway as laid out, and that there never has been any attempt to have the fences placed along the true line as surveyed, and there has been no dedication of any land for highway purposes outside of the west line of the-highway, there simply being a passive acquiescence in the fences remaining where they were placed, and that the public-has acquired no right by user or otherwise in any of the lands of plaintiff west of the lines of the highway as laid out, and [556]*556that the plaintiff in building his fences erected the same inside of the limits of the highway as laid out and as such highway in fact existed. Upon the facts found by the court 'below under this head it is well settled in this state that there could be no abandonment of any. portion of the highway laid ■out or any title by user acquired outside of the lines of tho highway as laid out. Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819; Nicolai v. Davis, 91 Wis. 370, 64 N. W. 1001; Reilly v. Racine, 51 Wis. 526, 8 N. W. 417. Counsel for appellants rely on State v. Lloyd, 133 Wis. 468, 113 N. W. 964; but in that case it will be seen that, although a four-rod highway had been laid out, subsequently a new road upon a different line from that formerly laid out was opened and traveled by the public and acquiesced in by the owners of the land, so the rule of slight deviation from the highway as laid out had no application and was so held by the court in that ■case.
4. It is also contended by appellants that the court erred in not awarding costs to the appellants. The case being in •equity, the matter of costs was in the discretion of the court, •and since we find no abuse of discretion we cannot disturb the ruling'below in that regard.
The writer desires to say in conclusion that it is the opinion ■of Justices Mabsuaul, Timliw, and himself that the judgment should be reversed upon the ground that there is no ■evidence that the alleged highway was ever laid out, but the majority of the court think otherwise, as indicated in the ■opinion of the court; therefore the judgment must be affirmed.
By the Court. — The judgment of the court below is affirmed.