State ex rel. Jarman v. Root

Vinje, J. It is not clear from the amended petition whether the action is one to compel the supervisors to remove the fence as an encroachment or one to compel them to institute proceedings under sec. 1330 et seq., Stats. 1919, for its removal. We shall. construe it, however, to be the latter.. The trial court found there is no record of an award of damages to the owners of the west two-rod strip of the highway as laid out, though there is evidence that other owners were awarded damages. Such a state of the record, in connection with the facts shown by the evidence to the effect that there is no proof that the west two-rod strip was ever opened up as a part of the highway; that there is no proof that the fence had ever occupied a substantially different place than the one it is shown to have, occupied since 1865, namely, on or near the north-and-south quarter line of the section, and that the owners have continuously since said date used the two-rod strip as a part of their farm and have claimed the right so to do, rebuts any presumption that 191 might arise from the lapse of time that damages had in fact been awarded or a release obtained. The witness W. R. Patterson, sixty-nine years of age, testified in 1920 that his memory of the road and fence extended back fifty-five years, and that the fence on the west was an old fence when he first knew it in 1865; that it had brush and shrubs of considerable size growing close up to it like old rail fences usually have. . The trial court therefore was justified in finding that the two-rod strip had never been opened up as a highway and that no damages had been awarded to the owners of such strip or a .release or dedication made. We thus have this situation: No proof of the two-rod strip ever having been opened up as a highway or that damages to its owners were awarded, but positive proof that for the last fifty years there has been a fence on the west side of the strip and that such strip for that length of time at least has been used as farm land under a claim of right by its owners to so use it. From such facts no other conclusion can legitimately be reached than that the two-rod strip never was and is not now a part of the highway and that the fence sought to be removed is not. an encroachment upon the existing highway. To constitute a lawfully laid out highway there must be proof, or a presumption, that damages have been awarded or a release obtained or a dedication made. Dolphin v. Pedley, 27 Wis. 469; McKee v. Hull, 69 Wis. 657, 35 N. W. 49. Here we have no proof of an award of damages, and the facts as to user of the two-rod strip and location of the west fence rebut the presumption of an award or release or dedication. By the Court. — Judgment affirmed.