Guse v. Flohr

Rosenberry, J.

The plaintiff assigns the following errors:

“The court erred in finding that the failure of the plaintiff and his predecessors in title to keep the fence on the south side of the right of way in repair constituted a waiver and abandonment of his right to maintain a fence upon that line.

“The court erred in finding that the fence along the south line of said private road was not a partition fence. . . .

“That the court erred in finding that the Hyland agreement operated as a conveyance of the fee to the grantees therein named with a reservation in the grantor of a right of way over the same.

“That the court erred in finding that the widening of the right of way and the grading of same and the covering of same with gravel was reasonably necessary to the use and enjoyment of the same by the defendants, and was reasonably necessary to the use and enjoyment of their said farm,”

The contention that the document dated May 2, 1852, was a conveyance of the fee is based upon the proposition that Hyland reserved the privilege of using the way himself in common with others, which reservation would have been unnecessary if he remained the owner of the fee, and that therefore it must have been his intention to convey the fee.

The case of Fischer v. Laack, 76 Wis. 313, 45 N. W. 104, is cited in support of the proposition. While it is true as there stated that a reservation is always something taken back out of that which is clearly granted, we are cited to no case and find none where the application of that rule operates to create a grant. If there be a grant and the question is whether the language used by the grantor amounts to a reservation or an exception, then the rule is applicable.

It is too plain for argument that what the parties intended was that Werlich, Flohr, and Werlich should have a right of way over the lands of Hyland, the boundaries thereof to be fixed in accordance with the survey, and that Hyland should have an equal right with Werlich, Flohr, and Werlich in the use of said strip as a way.

It is considered, therefore, that the plaintiff owns the fee of the land to his south boundary, subject, however, to the rights of the defendants and others to use the strip as a way. The right of the defendants and others to the use of this way is not a mere license, but a right acquired by the defendants’ predecessors in title for a good consideration, to wit, the surrender of their right to have maintained a public highway across plaintiff’s lands as then laid out.

There is no support in the record for the contention that the defendants acquired title to the way by adverse possession. From the beginning the use of the way was permissive. There is nothing in the record to support a finding that the defendants ever brought home to the plaintiff or his predecessors in title, in any way, a claim that they occupied the strip which they used as a way.other than under, the writing of May 2, 1852. It requires declarations or acts of the most unequivocal character to change a use permissive in the beginning to one of an adverse character. Pinkum v. Eau Claire, 81 Wis. 301, 51 N. W. 550; Perkins v. Perkins, 173 Wis. 421, 180 N. W. 334, 181 N. W. 812.

What are the rights, duties, liabilities, and obligations of the respective parties with reference to the easement granted by the plaintiff’s predecessors in title to the predecessors in title of the defendants? In the determination of the issues in this case the trial court went far afield and quite apparently attempted to buttress his conclusion by findings of fact and conclusions of law that have but little if any relation to the controlling issues in the case. Instances of this are-findings as to public policy, adverse possession of the way, acquirement of title by the erection of the fence on the south boundary of the way, and' other like matters. It is established that the owner of the servient estate, whether the way over the same be public or private, may make any and all uses of the land which may be made by him consistently with the enjoyment of the easement. In the matter of fences, the writing of May 2, 1852, provided that the plaintiff should maintain a fence on the south line of the way. This line was the southern boundary line of his land and the northern boundary line of lands owned by the defendants. Plis right to maintain this fence could not be questioned even if there had been no covenant in regard to it in the easement. The fact, if it be a fact, that defendants assumed the duty of maintaining this fence did not deprive the plaintiff of his right to have it maintained. Nor could the maintenance of the boundary fence operate to give the defendants title to the land upon which it stood. It is not denied, as we understand the case, that the Morse -survey correctly indicates the location of the east-and-west line between the lands of plaintiff and defendants. Plaintiff’s right to maintain a fence on that line seems to be .beyond legal controversy. Sizer v. Quinlan, 82 Wis. 390, 52 N. W. 590; Dudgeon v. Bronson, 159 Ind. 562, 64 N. E. 910, 65 N. E. 752, 95 Am. St. Rep. 315, note beginning on p. 318, “Rights and obligations of the owner of the fee,” and cases cited. See, also, note “Adaptation, improvement and repair of right of way,” L. R. A. 1918 A, p. 593; Harvey v. Crane, 85 Mich. 316, 48 N. W. 582, 12 L. R. A. 601, and note; Bellevue v. Daly (14 Idaho, 545, 94 Pac. 1036), 15 L. R. A. n. s. 992 and note.

It appears from the record that the refusal of the plaintiff to permit the removal of the fence to a point one rod farther south, whereby the width of the way would be increased one rod, is unneighborly, spiteful, and unreasonable. However that may be, the legal rights of the plaintiff remain the same. The mere fact that he does not choose to obey the Golden Rule and do unto others as he would have others do unto him does not change his legal rights, nor does it deny him the right to apply to a court for the determination and protection of these rights, particularly in this case where the jurisdiction of a court of equity is in no way challenged. There can be no balancing of equities in this case. It is quite apparent that the defendants have proceeded upon a wrong theory of the case. Their remedy is to ask the town authorities to lay out and establish the highway as the same is now fenced and maintained. This the proper authorities have ample power to do. The damages would be merely nominal.if the defendants waived their right thereto.

The defendants cannot diverge from the way as described in the instrument creating it or change its location merely because their needs are different today than they were seventy-five years ago when the easement was created. Nor have they any right to extend the use to other land. While it is for the benefit of the plaintiff as well as the defendants that the way be widened and improved, the plaintiff is not obliged to give his consent thereto. If he refuses to give his consent, the law provides a way by which the easement may be enlarged.

The rights of the plaintiff are so plainly and clearly established and the determination of the questions so far discussed so completely dispose of the issues that we do not find it necessary to enter upon a discussion of other questions raised in the briefs.

By the Court. — Judgment appealed from is reversed, and cause remanded with directions to enter judgment as indicated in this opinion.