Johnson v. Borson

Taylor, J. The only errors alleged by the counsel for the appellant for the reversal of the judgment of the circuit court are: “ (1) The court erred in holding that the erection of the bars in question was a reasonable and proper use of the plaintiff’s premises, and not an unlawful obstruction to the defendant’s.right of way. (2) The court erred in holding that it was the duty of the defendant to keep up and replace such bars. (3) The court erred in holding that the verdict and judgment of the municipal court were not warranted by the law and the evidence.” The finding by the circuit court that the defendant had a right of way by necessity over plaintiff’s fourteen-acre piece to the highway, must be taken as established by the evidence in the case, as neither party has excepted to such finding of fact. For the purposes of this appeal, that must be taken as a verity. The ninth finding of fact, in view of the undisputed evidence in the case, also establishes the fact that at the time of the alleged trespass the defendant had a right of way across the triangular piece of land lying between the fourteen-acre piece and the highway, as the evidence clearly 'shows that the plaintiff had fenced the fourteen acres from the highway, except at the point where the bar-way led from said fourteen-acre tract across the triangular piece to the highway. The plaintiff having obstructed the defendant’s way of necessity to the highway across the east side of said fourteen-acre tract, south to the highway, he might of right cross the plaintiff’s land at some convenient place to reach such highway. This proposition is sustained by the following decisions in this court: Jarstadt v. Smith, 51 [599] Wis. 96, 98, and cases cited in the opinion in that case. See, also, Dillman v. Hoffman, 38 Wis. 559. It baying been established that the defendant had a right of way over the place where the bar-way was placed by the plaintiff, the only other material questions in the case are as to the right of the plaintiff to maintain a bar-way at that place, and, if he had that right, .then whether the bar-way was a reasonable one under all the evidence in the case. Under the evidence in the case, we think the maintaining by the plaintiff of a gate or bar-way at the place in controversy would not be an unwarrantable obstruction of the way, as the evidence shows that the bar-way was practically at the end of the private way. The evidence seems to show that the land between the bar-way and the highway was unenclosed, and so the protection of the plaintiff’s enclosed land would justify a gate or bars at the place mentioned. The only other queston is, Vas this bar-way a reasonable, or was it an unreasonable, obstruction of the defendant’s right of way? It will be seen that the defendant, as a justification for leaving the said bars open when he passed through the same, claims that they were unreasonably heavy, and consequently the obstruction of the way was an unreasonable obstruction. Ve must presume that this question of the reasonableness of the bar-way was a question litigated in the municipal court; and an examination of the evidence taken on the trial in that court shows very clearly that the question of the reasonableness of the obstruction was contested on such trial. The jury in the municipal court, having found a verdict for the defendant, must have found that the obstruction was an unreasonable one. They must have found, as the circuit court did, that the loous in quo was the private way of the defendant; and, if the law be as it is claimed by the plaintiff to be, that in the absence of any express agreement on the subject the owner of the soil may place such reasonable gate or bars across such [600] right of way as is fairly necessary to protect the crops and cultivated lands of such owner, then the jury must also have found the bars in question were an unreasonable obstruction. That the reasonableness or unreasonableness of the obstruction is a question of fact for the jury in almost all cases cannot be controverted. See Bakeman v. Talbot, 31 N. Y. 366; Baker v. Frick, 45 Md. 343; Huson v. Young, 4 Lans. 63; Brill v. Brill, 108 N. Y. 511; Whaley v. Jarrett, 69 Wis. 613; Washb. Easem. 256. The jury having found for the defendant upon this question, their verdict on that question must stand, unless it is clearly unsupported by the evidence. That there is sufficient evidence to support their finding that the bars were an unreasonable obstruction can hardly be controverted. Under the rule established by this court as to the power of the circuit court to reverse the judgment of a justice’s court upon questions of fact, it seems to us very clear that the learned circuit judge erred in reversing the judgment of the municipal court upon that question. See Stebbins v. Killeen, 68 Wis. 682; Campbell v. Babbitts, 53 Wis. 276. The jurisdiction of the municipal court in the trial of civil actions is the same as that of a justice’s court, except that it may try cases where title to real estate comes in question. There certainly was sufficient evidence to sustain the verdict of the jury, and that is sufficient to make their finding binding upon the circuit court upon appeal. We are clearly of the opinion that the circuit court erred in reversing the judgment of the municipal court upon the reasonableness of' the obstruction placed in the right of way by the plaintiff. By the Court. — • The judgment of the circuit court is reversed, and the cause is remanded with directions to that court to affirm the judgment of the municipal court.