Town of Howard v. Brunette

KeewiN, J. Point is made by counsel for appellant that the evidence is undisputed and therefore the findings of the court below are not entitled to the same dignity as if the evidence were in dispute. We cannot agree with counsel in this contention. The surveyors who testified on the trial disagree as to the line of the highway in question and the witnesses who testified as to the location do not agree. There are at least conflicting inferences which may be drawn from the evidence of witnesses, if not direct conflict in their evidence. The mere fact that the supervisors of the plaintiff town took proceedings to alter the highway so as to carry it farther north and thus include the locus in quo, which would not be included without [8] the alteration, at least raises an inference that tlie supervisors doubted whether the place of the excavation was in fact within the limits of the highway as laid out and used as such. But aside from that there is direct conflict in the surveys, the Brauns survey placing the highway as claimed by defendant, and the Orbert and Suydam surveys placing the highway as claimed by plaintiff. We shall not review the evidence. We regard it conflicting, or at least conflicting inferences may be drawn from it. It appears from the record that the learned trial judge carefully tried the case and examined the evidence. He says in his opinion: “While this case involves but a small strip of land, it has presented questions which have caused the court considerable work and study. The controlling question is, Was the excavation made by the defendant within the limits of the highway at the time ? The highway in question was laid out in 1855, surveyed and located by a surveyor named Noyce. Most of the testimony has been directed to the question, Where' was the center line of that highway run by Noyce in front of the defendant’s premises ? A very careful analysis of all the testimony convinces me that the correct location of that line is the one established by Mr. Brauns, and that the locus in quo was not within the limits of the highway as established and laid out in 1855.” We think the findings of the learned trial judge have support in the evidence and cannot be disturbed under the repeated decisions of this court. It is insisted, however, by counsel for appellant that this case is ruled by Vernon v. Nicolai, 125 Wis. 319, 103 N. W. 1111; State v. Lloyd, 133 Wis. 468, 113 N. W. 964; and other similar cases in this court. We do not think the instant case is ruled by the above cases. True, as held in the cases relied upon by appellant, where a highway is opened and used as such for more than twenty years, which highway by mistake does not exactly coincide with the lines of the road laid out, the public acquires a right to use the particular strip for a [9] highway and thereby abandons those portions of the laid-ont way not included within the strip actually used. But such cases do no! rule the case at bar. ‘In the instant case the traveled track is within the highway laid out as claimed by both parties. The only dispute here is as to the location of the north line and how far north said highway extended as used for highway purposes under the claim of respondent. It is disputed, and an issue in the case, whether the locus in quo is or is not within the highway as laid out and used. A careful examination of the cases relied upon by appellant, namely, Vernon v. Nicolai, 125 Wis. 319, 103 N. W. 1111; Christianson v. Caldwell, 152 Wis. 135, 139 N. W. 751; State v. Lloyd, 133 Wis. 468, 113 N. W. 964; Neale v. State, 138 Wis. 484, 120 N. W. 345; Olwell v. Travis, 140 Wis. 547, 123 N. W. 111; Valentine Blatz B. Co. v. Milwaukee, 146 Wis. 239, 131 N. W. 416, will show that they are distinguishable from the case' at bar. It does not appear from the record before us how wide the highway was laid out, the center line only being given by the Royee survey. It appears that since the laying out of-the road its limits have not been very definitely marked, but the tráveled track continued about in the same place. Just where the north and south limits of the road are is more or less in dispute. In the present controversy it seems the plaintiff claims that the road is three rods wide and the defendant that it is four rods wide. We are satisfied that a road three rods wide with the center line as located by the Brauns survey would correspond more closely with the road as actually adopted and used than a four rods wide road. We therefore hold that the road in question is by adoption and acquiescence of the public a three rods wide highway with the center line as placed by the Brauns survey in evidence in this action. By the Court. — The judgment of the court below is affirmed.