Quinlan v. Pierce , 34 Wis. 304 ( 1874 )

DixON, C. J.

Counsel for the defendants insist that the deed of the land in controversy from Pierce and wife to the plaintiff, although in the common form of a warranty deed with the usual covenants of warranty and seizin, in law amounts to no more than a quitclaim, because the words of description are, “ all oí tbe north half of the southeast quarter of section one which has not leen previously conveyed to other persons by the grantors.”

It is also insisted by the same counsel, that the defendants were at all events justified in entering upon and removing the gravel from the land of the plaintiff under and by virtue of sections 14 and 15, ch. 19, R. S.; Tay. Stats., 481, §§ 18, 19. Section fourteen reads as follows: “ It shall be lawful for any overseer of highways, or any person acting under his direction, to enter upon any lands adjoining to or near the highway in his district, to construct such drains or ditches as may be necessary for the improvement or preservation of such highways; and any such overseer, or the persons as aforesaid, may enter upon any unimproved lands adjoining to or near the highway in his district, and gather or dig any stones, gravel or sand, and cut any wood or trees, and take away the same, for the purpose of making or improving such highway. ” Section fifteen is in these words: “ If any owner or occupant of lands so entered upon for any of the purposes mentioned in the preceding section, shall feel himself aggrieved, he may apply to the supervisors of the town, who shall appoint three disinterested electors of such town to appraise the damage,' and such electors, being first duly sworn justly and impartially to appraise the damages done upon such lands, shall proceed to estimate the same; and the damages, if any, allowed by them shall be certified under their hands, and the same shall be audited by the town board and paid out of the town treasury,” etc.

The questions thus presented involve considerations of very considerable delicacy and importance, the former as to the proper construction of the deed, and the latter in a constitutional point of view, respecting the validity of the method prescribed for ascertaining the damages sustained by the land owner. It is no cause of regret on our part that the facts of the case before us are otherwise such as to relieve us from the necesity of determining these questions.

We are satisfied from the evidence that the plaintiff, at the time of purchasing the land in question, had or ought to have had knowledge of the existence of the prior deed conveying the gravel pit by his grantors to the town of Omro. If he had not such knowledge, he had notice of facts which should have put him upon inquiry, which, if properly pursued, would have led to such knowledge. In support of this conclusion we refer to the evidence of the plaintiff’s residence in the neighborhood, his familiarity with the road and the gravel pit, his knowledge of the use that had been made of the gravel in 1872 to repair the road passing his own farm, the information he received from the boy respecting the place where the gravel for the road was obtained, and his presence at the place on one or two occasions while the work was going on, and the fact that the gravel pit, or strip of land adjoining the highway from which the stratum of gravel was conveyed to the town, was fenced out into the highway so as to be out of the possession of Pierce, the grantor, and in that of the town, and so as to be accessible to the overseer of highways and officers of the town for the purpose of removing the gravel which the town had purchased. ' All these were significant facts and circumstances to show knowledge of the prior conveyance on the part of the plaintiff; and we think he had it; and, having such knowledge, he of course purchased subject to all the rights of the town to enter and dig and remove the gravel, according to the deed.

The foregoing fact being established, the remaining question to be considered is, whether the evidence shows that the defendants took and removed more gravel, sand or earth than by the deed was conveyed to the town. Upon this point there is a conflict of testimony.; hut we are of opinion that the preponderance is with the defendants, and sustains the finding of fact made by the court below.

On the part of the plaintiff is the testimony of himself, Shu-felt and defendant Pierce, that earth and sand were removed from below the stratum of gravel. On the part of the defendants, the witnesses Lamphier, Bradley and Hotchkiss testify that there was no such removal, but that the excavation extended only to the bottom of the gravel or stratum which was conveyed. Under such circumstances, and with no other light than we possess, we can only affirm the finding of the county court, which seems to us to be in accordance with the weight of the testimony. It must be a much clearer case than this to justify the reversal of a finding by the judge before whom the cause was originally tried. Murphy v. Dunning, 30 Wis., 296.

It is suggested that judgment should, at all events, have been rendered against the defendant Pierce, who testified to the excavation and removal of sand beyond the depth of the gravel described in the deed, and purchased by the town. It would be very difficult for the court to assess damages against this one defendant for such excavation and removal, when it found from the whole evidence that no excavation or removal of the kind was made.

By the Court — Judgment affirmed.