Henbest v. Chicago, Milwaukee & St. Paul Railway Co. , 1926 Wisc. LEXIS 74 ( 1926 )

Stevens, J.

The maintenance of fences by the railroad so as not to interfere with the use of the passageway, the recognition by the railway company of the landowner’s right to have the trestle rebuilt so as to preserve the original width of the passageway, the improvement of the road in this passageway with cinders supplied by the railway company and with gravel supplied by the owners of the farm, as well as the attempt of the railway company to secure plaintiff’s consent to the change which it had started to make in this passageway, are. all significant facts which lead to but one conclusion, which is that those owning and occupying plaintiff’s farm have had and the plaintiff now has the right to the unobstructed use of the passageway here in question.

Such recognition of this right for nearly forty years raised a strong presumption that- such right arose out of a grant by the railway company to the owner of this land. Wollman v. Ruehle, 100 Wis. 31, 34, 75 N. W. 425. Indeed, the testimony of Mr. Humphrey on cross-examination (hearsay, it is true, but in the record without objection) tends to establish the fact that this right was granted by express contract.

But even if the right did not arise out of an express grant, it was the duty of the railway company throughout the years that have passed since the railroad was built to supply the owners of this farm with “suitable and convenient farm crossings.” Sec. 192.48, Stats. The railway has met this duty throughout these years by supplying this crossing without questioning the right of the plaintiff and of his predecessors in title to use the same.

This is a case where an under-crossing is necessary in order to supply a suitable farm crossing. State ex rel. Jacquith v. Wis. Cent. R. Co. 123 Wis, 551, 555, 102 N. W. 16. As in the case just cited, the plaintiff does not seek to secure the construction of a new crossing, but only to continue the maintenance of one at the place selected when the road was built. It is apparent that plaintiff’s farm has in the course of many years become adjusted to the use of this passageway. “Where the place has already been selected, and the railroad built with reference thereto (especially when an under-crossing), there remains only the question whether some such crossing is suitable and convenient for the use of the occupant, as these words are used in the statute.” State ex rel. Jacquith v. Wis. Cent. R. Co. 123 Wis. 551, 555, 102 N. W. 16. There can be no question under the facts of this case that this passageway under its tracks is both a suitable and a convenient farm crossing. It having been supplied by the railway companjr and used by the occupants of this farm for nearly forty years, the railway company cannot now close it or materially change it and thereby deprive the plaintiff of the use of such a crossing as the statute gives him the right to enjoy!

The fact that there are other farm crossing's on plaintiff’s farm does not give the railway company the right to close or materially change the crossing here in question. Grasse v. Milwaukee, L. S. & W. R. Co. 36 Wis. 582, 585. Especially is this true in view of the fact that there is no proof that any other crossing on plaintiff’s farm is either suitable or convenient. The only proof in the record leads to the contrary conclusion.

By the Court. — The judgment of the circuit court is affirmed.