Town of Randall v. Rovelstad

81 N.W. 819, 105 Wis. 410, 1900 Wisc. LEXIS 135

• Court: Wisconsin Supreme Court
• Decided: February 2, 1900
• Status: Published

Opinion

Dodge, J.

The existence and limits of the highway as adjudged to be obstructed depend upon finding 2, to the effect “ that for more than forty years last past there has been, and now is, a public highway running, , . . which said highway was at some time more than forty years ago dedicated and thrown open to the public by the owners of the adjacent property upon both sides thereof, and said highway has been accepted by the public, and bas been duly worked by the proper public authorities, and during all the time- aforesaid has been continuously and extensively used and traveled by the residents of said town and the public generally; that the south line of said road, as established by the evidence, is shown by a dotted line, marked ‘ old fence line ’ ” (line OB on diagram). This finding is ambiguous in several of its elements. It clearly, however, finds as fact that the entire highway from Bull in’s Bridge to the county line was dedicated and not laid out; and, secondly, that all of the premises north of the line OB on the above diagram were dedicated as a part of the highway more than forty years ago. As to this second proposition, the only evidence of dedication “more than forty years ago ” is the fact that from prior to 1843 there was a traveled road on substantially the course of the survey; that at some time prior to 1850 a fence was built along the northerly line thereof, substantially corresponding with the north line of the surveyed road; and that at some later time, not fixed but soon after, an irregular rail fence'was built south of said traveled course, varying substantially from the south line of the surveyed highway. If the conclusion of dedication is predicated upon the acts of the owner in building fences — and there are no other acts of his from which to infer animus dedicandi — it is contrary to the undisputed evidence as to the location thereof. The testimony of W. S. Benson and Ered Borck is uncontradicted to the effect that the only fence built south of the traveled way forty years ago ran past the tree (A), and on a line through the wagon shed now situated in the extreme northeastern corner of the premises claimed by the defendant. This line is far north of that described in the findings, and is such as to exclude from the highway all of the defendant’s cottage, and some portion, at least, of the wagon shed and the outhouse adjoining it on the south. If the evidence on this subject were conflicting, and at all approximated equality of preponderance on either side, t'he finding of the court below must, of course, control; but where, as here, not alone the great preponderance, but all the evidence, is contrary to the finding, it cannot be allowed to stand. The testimony of Michael Katzenberg is suggested as in conflict with that of Benson, but a careful examination makes the contrary clear. Katzenberg testifies to a fence building in 1867, which commenced at the extreme western portion of Benson’s premises, and ran southeastward about forty rods. This would not have brought him even to the point B. He testifies that from the end of said forty rods, instead of continuing a post and board fence, he merely repaired and left in place the old rail fence, and that he left that region of country in the spring of 1868, and knows nothing of what occurred thereafter. The testimony of Benson is that his work was done in 1868; that he commenced at about the present McG-arry cottage, which is westward of the point B and consistent with Katzenberg’s stopping place, and continued the post and board fence for some distance along the line of the old rail fence, and then deflected therefrom, and ran direct to the lake on the line BO. We are constrained ‘ to hold, therefore, that the finding of a dedication of all north of that line more than forty years ago is contrary to the evidence, and must be set aside.

We next come to the consideration of the other portion of the finding, to the effect that the highway generally was dedicated, as distinguished from being laid out. This conclusion was undoubtedly reached by the trial court by dismissing from his consideration the record of survey of 1840, as counsel on both sides seem to agree. If he had given it effect as a record, establishing the fact that a road was laid out according to the course there described, the conclusion of dedication, of course, could not have been reached, for the acts done at the period specified in the finding — more than, forty years ago — would then have been properly ascribed merely to recognition of the highway laid out, and not to a purpose to dedicate one. Manrose v. Parker, 90 Ill. 581; Larry v. Lunt, 37 Me. 69.

Upon examining the force of this record, we find that in 1840 the law vested the laying out of highways in the county board of commissioners. The procedure consisted in a petition presented to them by ten freeholders, with certain specified qualifications, and the appointment of three electors as viewers. The viewers were required to take an oath, to proceed to view the route proposed, and, if deemed by them of public utility, to lay out and mark such road on the ground. They were then required to make a certified report of their proceedings to the next ensuing session of the county board, when the same was to be publicly read, “ and, if no objection’s be made to such proposed highway, the said board shall cause a record thereof to be made, and order the said road to be opened and repaired a necessary width, not exceeding sixty-six feet, which shall thenceforth be a public highway.” Terr. Stats, of 1839, p. 107, § 6. The county of Racine was organized by the legislature in 1838, and the first meeting held April 2 of that year. As was to be expected in a new and sparsely settled but rapidly settling country, the question of the location of highways immediately became an important one, and, commencing with the meeting of June 25,1838, the petitions therefor became very numerous. The first indication in the records of the laying out of any highway occurs at the meeting of July 30, the records of which meeting disclose: “ A survey of the road from Southport to the United States road near the house of Jesse Foster was presented and approved. Also the survey of an alteration of a road south from Southport to the state line of state of Illinois, presented and approved.” Immediately following the record of this meeting appear recorded the surveys of these two roads. The first is simply the survey, without signature of surveyor or report of the viewers. The second bears the signature of the surveyor and the statement, “ Surveyed July 28th, 1838.” The regular meeting •of the board of January Y, 1839, is immediately followed by the survey of a road from Beloit to Lake Koshkonong, bearing the signature of the surveyor, and also report of the viewers, in the following words: “To the Commissioners of Racine County: We have viewed and surveyed the road from Beloit to Lake Koshkonong, and ask the same to be located. Beloit, 2Yth December, 1838.” The records of the meeting do not record any action of the board thereon. A change in county clerks had taken place between these two meetings. Thence onward to the close of 1841 appear great numbers of surveys of roads, many in forms above suggested; some bearing a certificate, more or less full, by the viewers, but few of them going further than to certify a survey; practically none of such certificates even purporting to set forth the proceedings taken by such viewers. As set forth in the statement of facts, the meeting of April 8, 1840, is in like manner followed by the surveys of six roads, whereof one bears a certificate by viewers, three, including the road in question, the formal signature of the surveyor, and two no signatures at all. At various preceding meetings are found the presentation of petitions for highways, not set forth sufficiently to positively identify them with the roads afterwards surveyed, although the one for the road in the village of Racine, recorded at the same time and in the same manner as the one in question, is capable of identification; and a petition signed by Bullin may well have related to the road from his bridge northwestward, now under consideration.

From this summary of the situation the conclusion seems to us irresistible that the formal entry of the survey of a road in this the recognized record book of Racine county, made by an official person, can have been due to no other purpose than to comply with the statute above recited, commanding that the road be recorded. There is no other justification for the county clerk to incumber the official records with these long descriptions. It is not to be presmned that a formal act of that sort is a wholly vain thing, and, if not vain, then it must be assumed that it is done in intended compliance with the law. A very strong presumption arises from the course of procedure that the construction placed by the county officers upon the statute was such as to be satisfied with the mere recording of the survey, which construction is not at all unreasonable, inasmuch as all that needs to be positively preserved is the description of a road so as to define the location. The records following the first meeting show that a recording of anything more than the survey was not understood to be necessary. The fact, also, that of all the important highways which were located during the first three years of the country’s existence no other or different recording was made than as to the road in question, renders irresistible the conclusion that such recording was intended as and supposed to be the official act required to be done by the statute when all the preliminaries had been duly complied with. Erom such an official act, which is required and authorized only after certain preliminary steps, results a presumption that such steps were in fact taken, when, as here, the lapse of many years has made proof of the facts by ordinary evidence impossible. Van Buren v. Downing, 41 Wis. 122, 128; State v. Alstead, 18 N. H. 59; Bank of U. S. v. Dandridge, 12 Wheat. 70; Dodge v. Briggs, 27 Fed. Rep. 160; Webster v. Boscawen, 67 N. H. 111. We conclude that this record should have been received as a recording of a highway in compliance with the statute, and that it raises a presumption that a highway as therein described was duly laid out.

Even if this recorded survey were not sufficient to estaba lish the fact of a legal laying out, it would,, as. respondent concedes, suffice to define the course of a highway, shown by other evidence to have been established legally. Long occupation and use of a highway is itself s'trong presumptive evidence of an original laying out. Elliott, Roads & S, 133, 135; Reed v. Northfield, 13 Pick. 94; Webster v. Boscawen, supra. Here we have a highway extending some three miles-practically without deviation from straight lines, except such as are explained by the topography, including one due east and west course more than a mile long, Avhich is inconsistent with all experience in establishment of highways only by travel; a highway existing before the memory of any witnesses presented, but not, so far as appears, before the survey of 1840; and confirmed by fences located very early, and substantially corresponding with the survey, except for explained deviations.

The legal opening or establishment of an ancient highway may also be proved by hearsay, or even by reputation. 2 Jones, Ev. §§ 304, 305; 1 Greenl. Ev. (15th ed.), § 128; Willey v. Portsmouth, 35 N. H. 303, 310; Webster v. Boscawen, supra. In the autumn of the same year as the survey, this road is recognized as a laid-out road having a definite location by the county board of the adjoining county of Walworth. Upon the creation of Kenosha county out of part of Racine county in 1850, it is recognized as one of the legal highways, and the survey record under consideration was included among the “ official highway records ” of the new county. In-1881 men working on the road declared its reputation as a legal highway with defined three-rod limits. In 1890, Mr. Reed, who had owned the land on both sides from 1880, declared the reputation of the highway as-one having legal limits substantially in accord with the survey, and ascribed that reputation to statements of the towjr officers. Finally, in 1894,. the town officers of Wheatland recognized it as a road having legal limits different from the course of travel where the same had been deflected to-avoid an impassable place, and applied the survey in question as that upon which the road has been laid out. With absolutely nothing in contravention, this reputation and conduct of itself would suffice to prove the fact that the highway in question had been legally laid out by proper authority; and as it commences with the recording of the survey in question, and is at all times consistent with it, and as there is nothing else to which such reputation can be ascribed, we conclude that such character is established by the evidence and the location of the road by the record of the survey in the county records.

It being established that the highway in question, generally speaking, was not created by dedication, and that the exact locus in quo, being outside of said surveyed highway, was not dedicated in the original fencing out of the road more than forty years ago, the judgment cannot stand, unless it can be supported by some subsequent fact sustained by a preponderance of the evidence, as to which we have no finding by the court below to aid us. It is contended that the acts of the owner in changing the fence in 1868, followed by nearly thirty years of noninclosure and user, establishes either a dedication at that time, or establishes a right of occupancy for a highway by prescription. Respondent’s attitude as between these two positions is not very clearly defined. Dedication, as we have said, rests upon the intent of the dedicator. User alone is not sufficient to establish that intent, but must be accompanied by some act or acquiescence on the part of the owner. Elliott, Roads & S. 92; Angell & D. Highways, § 151; Gardiner v. Tisdale, 2 Wis. 194; Eastland v. Fogo, 66 Wis. 133, 135; Bates v. Beloit, 103 Wis. 90; Chicago v. C., R. I. & P. R. Co. 152 Ill. 561; Harding v. Jasper, 14 Cal. 642, 649. This, of course, does not mean that there must be in all cases direct evidence of an expressed intent, but that the events, among which long-continued user may be very important, create a firm belief that the owner did actually intend to dedicate; and these events may be strong enough to overcome direct testimony of the owner denying such intent, for such testimony, being to a mental state of which no one but the person himself can have any knowledge, yields readily to acts and circumstances inconsistent therewith. Elliott, Roads & S. 92 et seq. Such intent is not, however, to be inferred lightly, or from ambiguous acts open to other construction. An owner should and must have the right to deal with his land as he will, and his conduct with reference thereto should be construed most favorably to the retention of his ownership, rather than to relinquishment thereof. The law carefully protects the owner from devolution of title for other purposes by requiring formal writing over his own signature, and, if that requirement is to be relaxed in case of dedication to the public, the acts necessary to accomplish that re sult should approximate the written instrument in freedom from uncertainty as nearly as possible. Badeau v. Mead, 14 Barb. 339; Cunningham v. Hendricks, 89 Wis. 632. The limits of the doctrine of dedication by acts, as quoted and adopted from Angell in Eastland v. Fogo, supra, should be kept in mind: “ The vital principle of dedication is the intention to dedicate,— the animus dediccmdi,■ — -and, whenever this is unequivocally manifested, the dedication, so far as the owner of the soil is concerned, has been made.” While long continued user by the public is a very persuasive consideration, as said in many cases, its significance depends greatly on the circumstances, the character of the land, the ■shape of the uninclosed parcel, the character of the use, as whether continuous and uniform or occasional, whether passage over it is as a highway or only in the nature of a wandering from an adjoining road,— all these and many other circumstances may have great weight in determining whether an owner’s apparent abandonment of his property is with intent to dedicate to the public use or merely to forego the use of it himself until such time as he needs it.

In the present case the reason of the deflecting of the fence so as to leave open the premises in controversy is fully explained, and is entirely reasonable and credible. The economizing of a few lengths - of fence was doubtless, in 1868, much more to be considered than any gain from the pasture of a brushy and sandy knoll immediately adjoining this body of water. Again, the shape of the premises discarded is-such as to be inconsistent with the idea of dedication as a part of the highway. A highway, in its ordinary conception, is a strip of land bounded by approximately parallel boundaries for the purpose of direct travel. It does not include the idea of bays or excrescences on either side of it, not. within the direct course of travel, and not adapted thereto, such as the triangle left open in 1868. We think the case falls clearly within the reason stated in Biddle v. Ash, 2 Ashm. 211, 220, and Griffin’s Appeal, 109 Pa. St. 150, that if any reasonable consideration, personal to himself, exists-why the owner leaves uninclosed a space beside a highway, it will tend strongly to rebut the inference of intention to dedicate. Again, as we shall more fully point out in discussing the question of prescription, there has been no such user of any pa.rt of the premises inclosed by the old rail-fence and thrown open by the fence of 1868 as to imply a consent or purpose on the part of the owner that they should become part of the highway. Almost the only use that is shown to have been made thereof is for the purpose of penning and washing sheep,— a use inconsistent, rather than consistent, with a road, and of which knowledge by the-owner, even accompanied by consent, would hardly at all tend to indicate that the premises so used were to become highway.

In considering the question of prescription, the element of consent is, of course, eliminated. The right of public highway by prescription is predicated upon adverse user so long continued as to imply a presumption, not necessarily of a grant, but of an original legal establishment of the highway. Elliott, Roads & S. 134; Reed v. Northfield, 13 Pick. 94. By common law this user should be for twenty years 'to establish this conclusion; by statute (sec. 1294, Stats. 1898), it need be for only ten years, but must be accompanied by working. An examination of all of the evidence in the light of the map adopted by the court, giving it its utmost force, establishes no customary, nor even casual, travel over any part of the lands in controversy, namely, •those situated within the town of Rcmdall, except over a strip about three feet wide along the sixteen feet of fence built by the defendant south of the town line. There is evidence to the effect that the main traveled track, as it existed prior to 1894, was invaded about three feet by the picket fence. There is also testimony that, after passing beyond this sixteen feet toward the northwest, travel at times has deflected to the left so far as to pass to the south of the tree (A), and some witnesses carry it as far south as within a •couple of feet of the north end of the house. But this is all ■outside of the town of Rcmdall, and within the triangle in the town of Wheatland, and therefore is not involved in this controversy. Such travel also appears to have been only casual. As to this sixteen-foot strip three feet wide, practically parallel to the course of travel, the evidence is by no means clear how long that travel had continued in the same place. It is shown that the whole road north of the Rovel-■stad property has been in equally good condition for travel, has never required any repair or attention from the town, and that the travel has extended at different times all over that space, even to the line of the north fence as originally located, a rod or more north of the present north fence. No witness testifies as to any period of time during which the course of travel had been continuously such as to be invaded by defendant’s structures. Proof of user, to establish a prescriptive right outside of the limits of an established highway, should be clear and definite. State ex rel. Lightfoot v. McCabe, 74 Wis. 481, 484. More so than is necessary to establish the use of a general strip of land as a highway, where, although the travel during the twenty years may have been distributed over its whole width, and not persistently ©ver any part, it serves to prove a use of a strip of the ordinary width as highway. Bartlett v. Beardmore, 77 Wis. 356. All the presumptions are against the acquisition of rights outside of those limits. The public welfare does not demand that highways should be broadened by the acts of those who travel over them; and any mere deviation beyond their bounds, which may be accounted for by topographical difficulties, or by carelessness of travelers as to the true line, will be presumed to be not adverse and not accompanied by a claim of right, more strenuously than acts within such limits, especially when such deviations have not been sanctioned by the making of repairs. Manrose v. Parker, 90 Ill. 581, 584; State v. Schilb, 47 Iowa, 611, 613; State ex rel. Lightfoot v. McCabe, 74 Wis. 481. This court has repeatedly held that travel tends only to establish the existence of a highway of the ordinary width or as laid out, although it may cover only a part. Bartlett v. Beardmore, supra; State v. Wertzel, 62 Wis. 184. Also, that deviation of travel from the laid-out course of a highway has no effect to change it. State v. Wertzel, supra; Maire v. Kruse, 85 Wis. 302. We find no sufficient evidence in this case to establish persistent and customary adverse use or occupation, as a highway, of any portion of the premises in the town of Randall claimed by the defendant, for a period of ten years, and therefore no support for the judgment appealed from.

By the Court.— Judgment reversed, and cause remanded, with directions to dismiss the complaint.