Rhodes v. Halvorson

SiebecKER, J. Sec. 1294, Stats. 1898, provides, “All roads not recorded which shall have been or shall be used and worked as public highways ten years or more shall be deemed public highways,” unless it comes within one of the exceptions under this section. These exceptions are not material to this case. Upon the evidence, the jury, under proper instructions, found that the locus in quo had been used and worked as a public highway for a period of ten consecutive years prior to the commencement of this action, namely, from 1890 to 1901. Appellants insist the court erred in submitting this question to the jury, for the reason that the evidence shows that fences and gates were maintained across the traveled track of the road on their land. ■ The evidence establishes that no gates were maintained at or near the south line, where the track passed over appellants’ land, for a period [101] of at least sixteen years prior to tbe commencement of tbis action. Some of tbe witnesses testified tbat a fence and gate bad been maintained across tbe traveled road at tbe north line of appellants’ land for a considerable period of years between 1890 and 1901. A number of witnesses, on tbe other band, testified tbat they traveled over tbe road frequently during tbis period, and found it open, and observed no fence or gate. Mr. and Mrs. Filter, who occupied tbe land adjoining appellants’ on tbe north, testified to tbe free and unobstructed use of tbe road by tbe public for twenty years or more immediately preceding tbe commencement of tbis suit, .and tbat they did, during tbe spring and fall seasons in recent years, keep a temporary gate and fence at or near tbe division line between their land and appellants,’ across tbe traveled track of tbis road, to keep their stock from straying off their premises. They also testify tbat such fence and gate were kept closed only a few weeks at a time during such seasons, causing slight, if any, obstruction to tbe use of tbe road by tbe public, and were not intended to close up the road, or prevent tbe public from using it as a public highway. Tbis is all tbe testimony tending to show tbat gates and fences cut off public travel within tbe ten-year period covered by tbe verdict of tbe jury. There is an abundance of evidence sustaining tbe finding tbat tbe road bad been worked as a public highway by tbe proper town authorities throughout and prior to this ten-year period. Upon tbis state of tbe evidence, we must bold that tbe jury were warranted to find tbe road in question bad been used and worked as a public highway for a period of ten years before tbe commencement of tbis action, and tbat the locus in quo is a public highway. Among tbe cases in tbis court which recognize tbis principle are Hart v. Red Cedar, 63 Wis. 634, 24 N. W. 410; Blute v. Scribner, 23 Wis. 357; Hanson v. Taylor, 23 Wis. 547; Scribner v. Blute, 28 Wis. 148; Chippewa Falls v. Hopkins, 109 Wis. 611, 85 N. W. 553. [102] It is contended tbe court erred in receiving in evidence a large number of records pertaining to organizations of road districts, and tbe election of officers, levying taxes, and expending money for road improvements, because tbe evidence fails to show it affected appellants’ premises. It is not entirely clear that all tbis evidence was material, but we perceive no prejudice in its admission. In so far as immaterial evidence was received, it was harmless in its effect, and could work no prejudice to appellants. Other exceptions were argued, which relate to branches of the case that have become immaterial, since, under the third and fourth findings of the jury, which were properly submitted, the locus in quo must be deemed a public highway. By the Court. — Judgment affirmed.