Wille v. Bartz

60 N.W. 789, 88 Wis. 424, 1894 Wisc. LEXIS 83

Opinion

Pinkey, J.

1. The finding of facts upon questions depending upon the weight of evidence, or upon what it establishes, will not be disturbed where the bill of exceptions does not show that it contains all the evidence given at the trial (Daskam v. Beemer, 64 Wis. 13); and exceptions to the finding as to the facts are not available on appeal unless incorporated in the bill (Hoey v. Pierron, 67 Wis. ; Koenigs v. Jung, 73 Wis. 178). In such cases the only question in this court is whether the pleadings and findings sustain the judgment. Blossom v. Ferguson, 13 Wis. 76; Cramer v. Hanaford, 53 Wis. 85; Edleman v. Kidd, 65 Wis. 18.

2. The pleadings and facts found clearly sustain the judgment. The defendants had easements over the loeus in quo, but the fee remained in Saxby, and subsequently passed to the plaintiff. Their rights are confined to a reasonable use of the way secured by the deeds from Saxby, the common grantor of both parties, in view of all the circumstances of the case and the use made of the premises affected by them. It is expressly found that the erection and maintenance of the gate was reasonable and necessary to the reasonable and necessary use and enjoyment of the plaintiff’s land, and that it did not unreasonably interfere with the use of the right of way by the defendants. Whaley v. Jarrett, 69 Wis. 613; Johnson v. Borson, 77 Wis. 593; Brill v. Brill, 108 N. Y. 511, 517; Sizer v. Quinlan, 82 Wis. 390, 392. The latter case holds, as well, that the owner of the easement may not fence in the way and thereby exclude the owner of the fee from such uses as he may make of his land not inconsistent with the easement. The acts of the defendants in breaking down and removing the gate were therefore wrongful, and judgment was rightly given in favor of the plaintiff for her damages and costs.

By the Gou,rt.— The judgment of the circuit court is affirmed.