State v. Town Board of Tomahawk Lake , 192 Wis. 186 ( 1927 )

Owen, J.

If 'a public highway exists over the lands'or along the route in question it must have come into existence either by user or by lawful proceedings of the town board establishing and laying out a public highway thereon. The trial court, in a very cogent opinion, disposed of the prescriptive feature of the case in the following language:

“The court is satisfied that the road or driveway here in question originated with the logging camp of Bradley & Kelley along in the early 90’s — probably in 1892. It was a combined skidding road and tote road. The use which other people made of it thereafter was just such use as is commonly made by all sorts of people here in Northern Wisconsin, who use any and every old logging road, tote road, or other way which they may find in wild lands, and particularly in the vicinity of lakes.

“I am very clear that under the decisions of Wiesner v. Jaeger, 175 Wis. 281, 184 N. W. 1038, and Bassett v. Soelle, 186 Wis. 53, 202 N. W. 164, such user by others than employees of Bradley & Kelley must be deemed to have been permissive and not adverse or hostile. While this court might disagree with the opinion in Wiesner v. Jaeger, if in position to do so, there could be no disagreement with the opinion in Bassett v. Soelle

The court then quotes from Bassett v. Soelle, 186 Wis. 53, 202 N. W. 164, and continues:

“Applying these principles, it must be held on the proof here that such use of the road in question as was made by the Woodzickas, their friends and guests and hunters, fishermen and campers, was permissive and not adverse. It certainly began in that character, and the evidence indicates no point at which the use was turned into an adverse use, unless it was when the town board attempted to lay out a public highway in 1919.”

Counsel for appellants concedes that there is little material dispute concerning the facts, but disagrees with the conclusion of the trial court that the use was not adverse, and maintains that the use was one of necessity by not only the Wood-zickas but by other homesteaders in that vicinity. He seeks to distinguish the case of Bassett v. Soelle from the present case on the ground that it was a private way and not a public way that was involved in the case of Bassett v. Soelle.

Nowhere in the books do we find a clearer discussion of the elements necessary to constitute a highway by user than is to be found in the dissenting opinion of Dixon, C. J., in Hanson v. Taylor, 23 Wis. 547. He there points out that -“Title acquired by prescription and title acquired by user, or adverse user, as it is commonly called, mean the very same thing. Prescription is defined to be a mode of acquiring title to an incorporeal hereditament by long and continued usage.” He then makes plain that in addition to long and continued user an intention on the part of the owner to dedicate the soil must positively concur. He says: “The intention to dedicate, animus dedicandi, on the part of the owner of the soil, constitutes in every case the very foundation of the right; and there can be no title by prescription or adverse user without it.” After quoting from Barker v. Clark, 4 N. H. 380, 383, and Warren v. Trustees of Jacksonville, 15 Ill. 236, he says:

“These extracts sufficiently illustrate the doctrine, everywhere admitted, that dedication by the owner of the land is the true and only source of every title in the public to a highway claimed by prescription or adverse user. Angelí on Highways, § 131; 42 Me. 23. Within the period prescribed by law in which title by user or prescription may be acquired, which is commonly twenty years, though in this state ten years, the use of the land by the public may, upon the circumstances of the particular case and in view of the nature and situation of the country, furnish evidence of an intention to dedicate; but after that period has elapsed it becomes conclusive evidence of such intention, or of a dedication which cannot then be recalled, or, as expressed in many of the authorities, of a grant the written evidence of which is presumed to have been lost or destroyed by lapse of time. But into every such case there enters, as the starting point and foundation of the public right, the element of knowledge, on the part of the owner, of the use made by the public of his land, and of his assent thereto, which assent must be either expressed or implied from such clear and unequivocal acts and conduct, or strong circumstances of approbation on his part, as leave no doubt of his intention to dedicate or give the land to public use.”

While the opinion from which we are quoting was a dissenting opinion, there is no doubt of its soundness so far as it deals with the fundamentals of the doctrine of prescription. While a majority of the court arrived at a different conclusion in that case, that' conclusion was based, to a large extent, if not entirely, upon the provisions of sec. 85, ch. 19, of the Revised Statutes of 1858, which declared that "all roads not recorded which shall have been used as public highways twenty years or more . . . shall be deemed public highways.” The majority of the court held that under this statute mere user of the road for the requisite length of time, irrespective of the question of adverse user, constituted the road a public highway. That statute was repealed in 1878 and with its repeal went to a large extent the force of Hanson v. Taylor as an authority. It must be admitted, though we do it with regret, that there are other cases decided by this court which seem to hold that the mere naked user of a road for twenty years is sufficient to establish such road as a public highway. Chippewa Falls v. Hopkins, 109 Wis. 611, 617, 85 N. W. 553, and cases there cited. We can but regard the doctrine of those cases as unsound. They ignore entirely the very fundamental proposition that the user must be adverse or under such circumstances as will give rise to a presumption of an intention on the part of the owner to dedicate the road as a public highway. Those cases were not followed in Bassett v. Soelle, 186 Wis. 53, 202 N. W. 164, where the doctrine was recognized that the use must be under such circumstances as to give rise to a presumption of an animus dedicandi on the part of the owner. Some of the cases laying down the broad doctrine that mere user alone for a period of twenty years is sufficient to establish a highway were referred to, and it was there said that the cases there referred to did not relate to uninclosed lands. However that may be, the principle stated in Chippewa Falls v. Hopkins, supra, for instance, is sufficiently broad to include uninclosed lands, because it leaves out of all consideration the question of whether the use was adverse or whether it was under such circumstances as to raise the presumption of animus dedicandi. The necessity of an intention on the part of the owner to dedicate is clearly recognized in Bassett v. Soelle, and it is there said: “Outside this jurisdiction the decisions almost universally hold that mere use of a track or way over uninclosed lands, and especially woodlands, for the statutory period does not raise a presumption that the use is adverse to the rights of the owner. Indeed, there seem to be very few states in which a contrary rule prevails.” The reasons for the distinction between the rule which should govern in the case of the use of a way over inclosed and unin-closed land were there pointed out, and it was said: “It would be a harsh rule that the owners of such lands must stand guard over them or be deprived of valuable rights by those who have taken advantage of liberal treatment.” It might have been said, also, that there is no consideration of morals or of public policy which requires the penalizing of that neighborly consideration which permits or acquiesces in the use of a way over wild and uninclosed lands in a wild and undeveloped region. The law affords ample opportunity for the establishment of highways where needed. It is not necessary to penalize a considerate owner who has permitted travel over his uninclosed lands in order that the neighborhood may have highways: The town authorities are clothed with power to lay out highways wherever public necessity requires. While it may involve some public expense, moral considerations require that such expense be borne by the public rather than that fanciful considerations be invoked to impose a burden upon a landowner by reason merely of his neighborly indulgence. We deeply feel that the doctrine of Bassett v. Soelle is not only grounded in every consideration of justice, but that it has the support of well-nigh universal authority outside this jurisdiction, and that case must be held to state the rule now obtaining in this jurisdiction with reference to private ways or highways by user over unoccupied and uninclosed lands.

The trial judge has long been a resident of Northern Wisconsin and is thoroughly familiar with the customs of that country. In his opinion he said: “It was a combined skidding road and tote road. The use which other people made of it thereafter was just such use as is commonly made by all sorts of people here in Northern Wisconsin, who use any and every old logging road, tote road, or other way which they may find in wild lands, and particularly in the vicinity of lakes.” Such use, under such circumstances and pursuant to such customs, raises no presumption of an intention on the part of the owner to dedicate the soil for the purposes of a highway, and the conclusion of the trial court that no highway resulted by user or prescription cannot be disturbed.

The only further question remaining is whether the premises in question became a highway by reason of the attempt of the town board, either in 1919 or 1925, to lay out a highway along that route. Sec. 80.03, Stats., provides that “No public highway shall be laid out through or upon any . . . yard or inclosure used for educational or charitable purposes.” It is undisputed that the route of this alleged highway passes through “the yard and inclosure of the State Tuberculosis Camp which is devoted to educational and charitable purposes.” By the provisions of the statutes the town board was prohibited from laying out a highway through this camp, and its proceedings to that end were entirely void.

By the Court. — Judgment affirmed.