Wiesner v. Jaeger

Rosenberry, J. On behalf of the plaintiffs it is contended that the court erred in finding that the defendants and other classes of persons specified in the findings acquired a prescriptive right in the premises in dispute, and further in finding that the plaintiffs had and now have no legal right or authority to obstruct the path or otherwise prevent the defendants and other classes of persons named in the findings from walking along and over the same. Upon the trial there was no proof of any continued adverse, open, notorious, and hostile possession of the premises by the defendants, and the defendants rely upon the proposition that upon proof of twenty years’ user a presumption arises that such user is adverse and hostile to the rights of the owner of the premises and that such presumption has not been overcome by the proof offered on behalf of the plaintiffs, and that the defendants are therefore entitled to the benefit of the judgment as rendered. The undisputed facts are stated as follows by the trial court: “There is a well-defined and worn path across plaintiffs’ premises which is located as shown on defendants’ exhibit number. T,’ and which path has existed in substantially the same place for fifty years; that this path is the shortest land route between Kingston’s Grove, in which there are something like thirty cottages, and the Schuett property, upon which is located a general store, saloon, dance hall, and amusement park, and upon which the postoffice was located until about two years ago. For a period of more than twenty years prior to the commencement of this action this path was used by the defendant Kingston and the occupants of the cottages in Kingston’s Grove and others in passing to and from the Schuett property and in traveling along the lake; said use of the path was without the express permission of the owners of the plaintiffs’ premises, but was known to and acquiesced in by them, and there was no objection made to such use until August, 1918; there was always a free passage from the path on the Kingston property through or. over the fence between the Kingston property and the plaintiffs’ premises. At first there was a step that could be used in getting over the fence, then afterwards [285] there was an opening which was protected by posts so as to prevent cattle from getting through, but permitted people to get through in passing back and forth, and that finally there was a gate. There were signs on the premises at different times warning people to keep off from the premises, to keep off from them, but not so placed as to indicate that the path was not to be used by people traveling over the premisés, but rather warning them, in my judgment rather warning them to keep off from the property on the side of the path. . . . “While the people making use of the path never asked permission to go across the same, nevertheless they were justified in believing and did believe that they had a right to use it for the purpose of traveling thereon. I think that covers the facts.” It appears that at or near the Schuett property there was in an early day a sawmill and that the path along the lake shore has been there for at least fifty years. The plaintiffs’ contention is that such use as was made of the path by the defendants and others was permissive, was not hostile, and that therefore the presumption which might arise upon proof of twenty years of open, notorious, hostile possession adverse to the rights of the plaintiffs does not arise. The issue in this case lies in a very narrow compass. The presumption upon which the defendants rely does not arise unless the user, during the statutory period, is adverse and hostile to the rights of the owner. The mere fact that the user has continued for twenty years does not raise the presumption of adverse, hostile user. The nature of the user, as well as the length of the period over which it is extended, must both be established by evidence. We think the trial court was in error in holding that the proof of this case establishes an adverse, hostile user of the premises. In fact, it appears to be quite clear that such use as the defendants made of the premises was not under claim of right but was permissive. There is nothing in the evidence to show that the defendants, or any of them, ever claimed any right adverse to the plaintiffs, and there was certainly nothing in [286] the character, of the user which could have brought home to the plaintiff notice of the fact that any right was claimed other than a permissive right. The right claimed by the defendants is a private as distinguished from a public right. The presumption does not arise in this case because the use from the beginning is shown to be permissive. There is no hostile entry or other fact established upon which the presumption can rest. The possession of the defendants in this case was neither hostile nor exclusive. In the case of Pitman v. Hill, 117 Wis. 318, 94 N. W. 40, the nature of the use of the premises was such as to make it open, continuous, hostile, and exclusive. A user permissive, no matter how long-continued, cannot ripen into an easement by prescription. Kolpack v. Kolpack, 128 Wis. 169, 107 N. W. 457; Thoemke v. Fiedler, 91 Wis. 386, 64 N. W. 1030. See note, cases cited 44 L. R. A. n. s. 89. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for the plaintiffs in accordance with the prayer, of the complaint.