Dyer v. Walker

Pinney, J. The finding of the court is abundantly sustained by the evidence, and we think the pleadings and facts found clearly sustain the judgment. The defendant had an easement over the tract of land of the plaintiff, but his rights are confined to a reasonable use of the way which he had acquired by prescription, in view of all the circumstances of the ■case and the use then and theretofore made of the premises affected by it. It is expressly found that the building of the fence in question was necessary to the convenient and profitable use by the plaintiff of his said forty-acre tract of land, and that said fence and gate across the defendant’s private right of way were reasonable as to their position and construction, and that the erection of the gate over the same ■only slightly inconvenienced the defendant in his use of said ■right of way, while to deny plaintiff the right to maintain. [408] a fence with, a gate where it crossed said right of way would deprive him of the use of a considerable portion of this forty-acre tract of land. In Wills v. Bartz, 88 Wis. 424, it was held, in accordance with previous cases there cited, that the owner of land subject to a right of way may maintain a gate across the way if such gate is necessary to the reasonable use and enjoyment of his land, and does not unreasonably interfere with the use of the way. Whaley v. Jarrett, 69 Wis. 613. And in Sizer v. Quinlan, 82 Wis. 390, 392, it was held that the owner of an easement may not fence in the way, and thereby exclude the owner of the fee from such uses as he may make of his land not inconsistent with the easement. The plaintiff, the owner of the soil of a way, whether public or private, may make any and all uses of it to which the land can be applied, and take all profits which can be derived from it, consistently with the enjoyment of the easement. All rights which are consistent with the reasonable exercise of the easement remain with the grantor. Whether acquired by grant .or by prescription, from -which a grant may be implied, it was only an easement that was acquired by the defendant; and he is entitled only to a reasonable and usual enjoyment thereof. Subject to that, the right of dominion and use is in the plaintiff, to the exclusion of all others. As owner of the soil, he had all the rights and benefits of ownership consistent with the easement. Brill v. Brill, 108 N. Y. 511, 516; Johnson v. Borson, 77 Wis. 593. The defendant, under the facts stated, was the owner of the dominant estate, for the benefit of which the easement, existed; and the plaintiff’s was the servient estate, burdened, with the easement in question. It is said in Goddard,. Easem. (Bennett’s ed.), 332, 338: “ The only obligation upon the servient owner is that he shall not unreasonably contract the width of the road, or render the exercise of the right of passing substantially less easy than it was at the time of the409 grant. And even where a right of way was granted over certain roads marked on a plan, and one was described there as forty feet wide, it was held that the grantee was entitled to only a reasonable enjoyment of a right of way, and that such reasonable enjoyment was not interfered with by the erection of a portico which extended a sh<?rt distance into the road, so as to reduce it at that point to somewhat less-than forty feet.” It would seem that, whether created by grant or acquired by prescription, in point of width the way need be only such as is reasonably necessary and convenient-for the purpose for which it was used or granted. Atldns v. Bordman, 20 Pick. 291. The judgment of the circuit court is clearly in conformity with the principles recognized and laid down in the authorities cited, and must therefore be affirmed. By the Gov/rt.— The judgment of the circuit court is affirmed.