Wegner v. Erffmeyer

The following opinion was filed April 5, 1927: Owen, J. The question presented is whether the plaintiffs have the right to use the south fifteen feet of the west fifty feet of lot 12 as an alley. In Fischer v. Laack, 76 Wis. 313, at p. 319 (45 N. W. 104), it is said: “The only methods known to the law by which one person may acquire an easement in the lands of another are by grant or prescription or, in the case of a right of way, by necessity.” As these lots front on public streets, there can be no claim in this case of an easement by necessity, and no such claim is made. Plaintiffs’ claim to the easement is based upon both grant and prescription, and the trial court found that it did exist both by grant and prescription. We find, however, that the record reveals no grant of the south fifteen feet of the west fifty feet of lot 12 to be used for the purposes of an alley. In each of the three deeds by which the east ninety feet of lots 12, 13, and 14 were conveyed appear exceptions and reservations of the south fifteen [216] feet of those parcels, which created an easement for the purposes of an alley for the benefit of other land owned by the grantor across said east ninety feet (Barkhausen v. C., M. & St. P. R. Co. 142 Wis. 292, 124 N. W. 649, 125 N. W. 680; Luttropp v. Kilborn, 186 Wis. 217, 202 N. W. 368), but nowhere is there a grant of an easement for the alley across the west fifty feet of said lot 12. That such an easement cannot be implied from the reservations or exceptions contained in the various conveyances of the east ninety feet is expressly held in Fischer v. Laack, 76 Wis. 313, 45 N. W. 104. It must therefore be held that plaintiffs’ right to an easement across the west fifty feet of lot 12 does not rest in grant. The court, however, found upon the evidence “that the plaintiffs, claiming under their conveyance aforesaid, and their tenants, continuously, uninterruptedly, and with the knowledge and acquiescence of said Ernst von Baumbach and his successors, used said alley for the purpose of travel and for the customary uses of an alley since the 11th day of October, 1887, and until its obstruction by defendants, as hereinafter stated.” The court then details the various purposes for which the alley has been used, and it found that “said alley was well defined and showed the marks of travel at all times, and that the defendants knew or ought to have known of the existence of said rights of the plaintiffs to the use of said alley, and purchased with notice of the rights of plaintiffs and the other owners abutting on said alley.” The evidence fully supports this finding. “When it is shown that there has been the use of an easement for twenty years, unexplained, it will be presumed to have been under a claim of right and adverse, and will be sufficient to establish a right by prescription, and to authorize the presumption of a grant, unless contradicted or explained. In such a case the owner of the land has the burden of proving that the use of the easement was under some license, indulgence, or special con [217] tract inconsistent with the claim of right by the other party.” Carmody v. Mulrooney, 87 Wis. 552, 58 N. W. 1109. While the burden is on one who claims an easement by prescription to show the adverse user thereof for the statutory period, a presumption that the use was adverse arises from mere proof that it was so used. The owner of the land then has the burden of proving that the use was permissive and not adverse. We take this occasion to correct a statement found in the opinion of this court in Wiesner v. Jaeger, 175 Wis. 281, 184 N. W. 1038, where it is said that “The mere fact that the user has continued for twenty years does not raise the presumption of adverse, hostile user.” This is an erroneous statement of the law, the result of inadvertence, and .is now withdrawn. The decision in that case, however, did not rest upon this erroneous statement of the law. In our view of the evidence in that case, it established a permissive use of the path in the beginning, and we considered that the finding of the court that the use was adverse was not justified by the evidence. To the point that proof of user for the statutory period raises the presumption that such use was adverse, and lays upon the owner the burden of proving the contrary, see notes in 44 L. R. A. n. s. 89, and 8 L. R. A. n. s. 149. The evidence in this case shows a continuous and uninterrupted use of the alley by the plaintiffs and other abutting owners for a period of twenty years. This raises a presumption that the use was adverse. There was no evidence to rebut this presumption. The finding of the trial court, therefore, that the plaintiffs have a prescriptive right to the use of the strip for the purposes of an alley cannot be disturbed, and it results that the judgment must be affirmed. By the Court. — So ordered. A motion for a rehearing was denied, with $25 costs, on June 20, 1927.