School District No. 5 v. Knitter ( 1924 )

Eschweiler, J.

The defendants on this appeal now limit it to the sole question as to whether or not the judgment below was wrong in excluding them from using the traveled track or roadway across the school acre.

It is contended that there was a reservation of such traveled track, then plainly visible, by implication in the deed from Brill to the school district in 1882, or else that the continuous user of such roadway by defendants and their predecessors gave absolute title to such an easement as against the plaintiff.

On the first of these propositions defendants rely upon the case of Kutz v. McCune, 22 Wis. 628. There a conveyance was made of a tract of land with usual covenants against incumbrances. Some thirty acres thereof were flowed, under prescriptive right, by a mill pond created by a dam on lands not owned by that defendant. The action was brought for breach of the covenants. It was held that such incumbrance or easement, being obvious and notorious in character, must be presumed to have been seen by the purchaser and considered by him in fixing the price, as much so as though it had been a public highway, and the rule was declared that such a purchase would be under the natural presumption that it is made subject to outstanding rights that the physical condition obviously indicates, though there be no exceptions or reservations concerning them in the deed. A similar ruling has been made as to railway or other, highways in use as such on the land at the time of the sale and that such constitute no breach of the usual covenants. Smith v. Hughes, 50 Wis. 620, 627, 7 N. W. 653. Also that a transformer and a telephone line on the property, though incumbrances, are not such as can be considered defects in the vendor’s title entitling the purchaser to rescind. Chandler v. Gault, 181 Wis. 5, 11, 194 N. W. 33.

Clearly Brill in 1882, then owner of the entire property, with title absolute, could not assert such an easement in favor of one part of his holdings as against another part by mere user. When he conveyed to plaintiff there was no prescriptive right to such way in any other person, because the earliest date of its use, under the testimony, was in 1873. No contention is or could be made that this was. a way by necessity. There was therefore no existing legal visible burden- upon this acre when purchased by plaintiff.

Defendants further insist that continuous user without objection from plaintiff of this road, after the quitclaim by Brill to Rutta in 1884 of a right of way and which is set forth in the statement of facts, forecloses the plaintiff from the right to the relief given by the court below in closing this way. This quitclaim, however, by its terms refers to property in the southwest quarter of the section, where Brill and Rutta lived, and does not expressly purport to convey any rights to property across the north and south quarter line of the section, where the scho'ol acre lay. It did not purport to give any right of way to the public road, but expressly limited it to “down as far as the schoolhouse.” This left a gap unconveyed between the schoolhouse and the south line of the school acre and also on the small strip south of that acre still belonging to Brill and crossed by this private way before reaching the public road.

In view of the language of the quitclaim to the right of way, especially when considered in connection with the conveyance by Brill but two years before to plaintiff, the quitclaim must be construed to have conveyed to the north line of plaintiff’s acre and no further. From that point it was but about 160 feet directly south over. Brill’s land to the same public highway.

Whether as against the plaintiff carrying on a governmental function an absolute right can be acquired by adverse user to any such an easement as is claimed by defendants, is unnecessary to determine, for under the record here, no sufficient showing of adverse user under any of the statutes has been made.

By the Court. — Judgment affirmed.