Schroeder v. Moeley

Eschweiler, J. The trial court apparently reached the conclusion that plaintiff had an absolute easement over the defendant’s land to the public highway by the “east road” by reason of forty years’ user of the same. Yet such user was found to be, and it was conceded by plaintiff to have been from its beginning, based upon express permission to that effect given by the then owner of the servient estate, Robert Riches, to the then owner of the dominant estate, Schroeder.. Its continued use was upon continued permis [492] sion, and while so used title by prescription or adverse user could never arise. The continued forty years’ user of the “east road” left plaintiff with no better, or firmer title to it as an easement than his father and predecessor in title had 'the day after the permission was given aiid the user commenced. • The permission here shown as to the “east road” was a continuing bar to the possibility of a title by prescription. Wiesner v. Jaeger, 175 Wis. 281, 184 N. W. 1038; Schmoldt v. Loper, 174 Wis. 152, 182 N. W. 728. Neither could such conclusion by the court as to the “east road” be based upon the offer by defendant to give plaintiff written consent to such easement or by any tender of such writing, because the plaintiff did not accept thereof. When the plaintiff rested his case, the evidence on his behalf showed that for more than twenty years preceding defendant’s purchase of the farm in 1914 there had been open, notorious, continuous, and exclusive use for ordinary farm travel of the “west road” by the plaintiff and his predecessor and their respective families. That for more than twenty-five years it had not been permissive was directly testified to by plaintiff and by John Riches, defendant’s predecessor. At the end of twenty years of such continuous possession of an easement the presumption arises that it was adverse in inception and continuance. Carmody v. Mulrooney, 87 Wis. 552, 58 N. W. 1109; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Wollman v. Ruehle, 100 Wis. 31, 35, 75 N. W. 425; Bishop v. Bleyer, 105 Wis. 330, 333, 81 N. W. 413; Meyer v. Hope, 101 Wis. 123, 125, 77 N.W. 720; Perkins v. Perkins, 173 Wis. 421, 426, 180 N. W. 334, 181 N. W. 812. The defendant’s testimony having failed to overthrow such presumption — in fact having strengthened it, — the title became absolute in plaintiff before defendant purchased in 1914. That the taxes were paid on the 'entire farm including this “west road,” and apparently the “east road” as well, [493] was entirely immaterial. Such burden, in the absence of agreement to the contrary, rests upon the servient rather than the dominant estate. That gates were maintained at either end or both ends is also entirely immaterial. Gimbel v. Wehr, 165 Wis. 1, 13, 160 N. W. 1; Dyer v. Walker, 99 Wis. 404, 75 N. W. 79; Witte v. Barts, 88 Wis. 424, 60 N. W. 789; Whaley v. Jarrett, 69 Wis. 613, 34 N. W. 727. By the eleventh finding the court declared that no proof was made of any permissive and adverse use of the lands belonging to Kleinert and across a small corner of which the “west road” passed. By the third conclusion of law it was held that Kleinert is a proper and necessary party to the action, that no relief can be granted under the complaint, and that it should be dismissed. The plaintiff did not elect to make Kleinert a party. If Kleinert conceded plaintiff’s right or interposed no objections to plaintiff’s crossing his corner such as were interposed by Moeley as to his land, it would have been unnecessary and improper for plaintiff to'make Kleinert a party to this litigation. ' Defendant Moeley at no time moved the court to have Kleinert made a party, but takes the position, unsupported by citation of any authority, if any such can be found, that because Kleinert is not a party no relief can be given as against Moeley. Under sec. 2610, Stats., the court might do these things: determine the controversy between the parties before it without prejudice to possible rights of Kleinert; or, determine the issues as to the parties before it and save to Kleinert such rights as he might have; or, if Kleinert’s interests require protection, then, as the statute reads, “the court shall order” him to be brought in. The apparent disposition of the case as to this feature of it was therefore wrong. We can find no basis in the record for the granting of $50 as damages to the defendant on his counterclaim, for [494] no damages were asked or shown. The counterclaim, from what has beeil determined, must of course be dismissed. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for plaintiff. Rosenberry, J., dissents.