Shepard v. Gilbert

249 N.W. 54, 212 Wis. 1, 1933 Wisc. LEXIS 35
CourtWisconsin Supreme Court
DecidedJune 6, 1933
StatusPublished
Cited by14 cases

This text of 249 N.W. 54 (Shepard v. Gilbert) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shepard v. Gilbert, 249 N.W. 54, 212 Wis. 1, 1933 Wisc. LEXIS 35 (Wis. 1933).

Opinions

Wickhem, J.

The question in this case is whether the uses made by the plaintiffs and their predecessors in title were permissive or adverse.

It is the first contention of the plaintiffs that “when it is shown that there has been the use of an easement for twenty years unexplained, it will be presumed to have been under a claim of right and adverse, and will be sufficient to establish a right by prescription and to authorize the presumption of a grant, unless contradicted or explained.” Carmody v. Mulrooney, 87 Wis. 552, 58 N. W. 1109; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Wegner v. Erffmeyer, 193 Wis. 212, 213 N. W. 472; Kiefer v. Fox, 193 Wis. 361, 214 N. W. 441; Frank C. Schilling Co. v. Detry, 203 Wis. 109, 233 N. W. 635.

It is the contention of the defendant that the doctrine of the cases above cited was not intended to apply where the land was uninclosed, and that this case is governed by the doctrine of the case of Bassett v. Soelle, 186 Wis. 53, 202 N. W. 164, in which this court drew a distinction between “uninclosed lands” and “inclosed lands,” and held that the [5]*5mere use of a track or way over uninclosed lands, especially woodlands, for the statutory period does not raise a presumption that the use is adverse to the rights of the owner. The rule of this case is restated and affirmed in State v. Town Board, 192 Wis. 186, 212 N. W. 249.

According to the contention of the defendant, the Car-mody Case is distinguishable from the Bassett Case upon this ground and is not inconsistent with it. There can be no question but that the Bassett Case contains statements which give color to the argument of defendant that user for twenty years of uninclosed land is not presumptively adverse, and that the presence or absence of an inclosure is the sole circumstance which creates or repels the presumption of adverse user. While such a distinction has the virtue of certainty, it seems to be unsatisfactory as a universal test. It therefore becomes necessary to examine in a little more detail the reasons stated by the court in the Bassett and Town Board Cases, and to see if these point to an intention to establish such a distinction. In the Bassett Case it is stated:

“. . . It is a matter of common knowledge that where there is uninclosed woodland, like that here in question, it is customary for the public, for purposes of pleasure or convenience, to pass through it without express permission. So long as such use causes no inconvenience to the owner he would be regarded as unneighborly and churlish to forbid the use. In some parts of this state there are large areas of open woodland through which many persons pass without restraint. These lands are held by the owners with the expectation that when it is practicable they will inclose and cultivate them. It would be a harsh rule that the owners of such lands must stand guard over them or be deprived of valuable rights by those who have taken advantage of liberal treatment. It is for such reasons as these that it is generally held that the mere use of a passway through woodland will not give a right of way by prescription.”

[6]*6In State v. Town Board, 192 Wis. 186, 212 N. W. 249, it is said, in commenting upon the Bassett Case:

“It might have been said, also, that there is no consideration of morals or of public policy which requires the penalizing of that neighborly consideration which permits or acquiesces in the use of a way over wild and uninclosed lands in a wild and undeveloped region.”

While it may be difficult to state in a satisfactory manner the precise conditions under which the Bassett and Town Board Cases are to apply, it is evident that the court had something in mind other than a mere distinction between “inclosed” and “uninclosed” land. It was in the mind of the court that in certain localities there was unimproved property largely in a state of nature and in such form as to make it customary for the public, for purposes of convenience and pleasure, to pass through it without permission, and indeed without any great harm to the owner; that in such a situation any attempt on the part of the owner to exclude the public would not only be difficult but would constitute an act of unsociability which the average owner would hesitate to commit. We think the rule cannot be applied either to urban property or to property which is either improved or in the process of being improved, whether for use as agricultural lands or as city property. For example, the doctrine could not properly apply to a lawn in a residential section of a city, even though the lawn was unin-closed. It may be difficult to state precisely the limits of the doctrine further than to suggest that it applies to lands that are wild, unoccupied, or of so little present use as to lead legitimately to the inference that an owner would have no motive in excluding persons from passing over the land.

In this connection it is proper to state that the fact of permission by an owner to an adverse user is important not so much as an independent fact but rather in the light that [7]*7it throws upon the character of the user. If there is permission to use a way and a user concededly in response to the permission, the user cannot be adverse in character.

“If the prima facie case, made by such continuous use, had been met by proof that it was under a license or contract, or permission of some character, or explained in some way as not hostile to the title of the true owner, the presumption of adverse use arising from the evidentiary facts stated would have been destroyed.” Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103.

■ Thus it is to be noticed that it is not merely the permission but user under the permission that destroys the adverse character of the act. If such permission is given, a subsequent use without comment or dissent by the person receiving permission may reasonably be assumed to be in response to the permission and in subordination to the title of the owner. If, however, the user, whether at the outset or later, proposes to hold not under the permission given but adversely, and makes this intention manifest to the owner, the permission is not effective to destroy the adverse character of the use.

“But if at any time after permissive possession commence there be a distinct denial of the right of the true owner brought home to him, that constitutes a new and hostile entry and a sufficient ouster of such owner to set the period of adverse possession running, which, if not thereafter interrupted, will at the expiration of the statutory period ripen into a perfect title.” Meyer v. Hope, 101 Wis. 123, 77 N. W. 720.

It is obvious that one to whom such a permission is given, who manifests no adverse intent except by conduct equally consistent with an intention to act in accordance with the permission, ought not to be considered to have brought home to the owner notice of the character of his user. No matter how notorious or open the use, the fact of permis[8]*8sion, in the absence of a disavowal of intention to act under the permission, gives to conduct of the user the appearance and color of a subordinate use. So in the case of lands to which the Bassett Case

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Cite This Page — Counsel Stack

Bluebook (online)
249 N.W. 54, 212 Wis. 1, 1933 Wisc. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepard-v-gilbert-wis-1933.