Opinion
October 10, 1956 —
November 7, 1956.
APPEAL from a judgment of the circuit court for Milwaukee county: GUSTAVE G. GEHRZ, Circuit judge. Affirmed.
For the appellant there was a brief and oral argument by William P. McGovern of Milwaukee.
For the respondents there was a brief and oral argument by John A. Udovc of Milwaukee.
Action for trespass and to quiet title to plaintiffs' property. Mary Vieth was interpleaded as a party defendant. The defendants Dorsch and Vieth are the parties in No. 62, Vieth v. Dorsch, ante, p. 17, 79 N.W.2d 96. Plaintiffs own a parcel of land immediately south of the Vieth property, the rear end of which adjoins the Dorsch lot for 30 feet. Thus plaintiffs' northwest corner is Vieth's southwest corner. Dorsch's property lies immediately west of that of Vieth and plaintiffs, and Dorsch has an easement for driveway purposes over the west eight feet of the Vieth premises.
For some time prior to the commencement of the present action, defendant and his tenants had been driving over a small triangular piece of plaintiffs' land, only a few square feet in area, in the process of turning from defendant's driveway over the Vieth land into defendant's back yard. To prevent such use of even a minute portion of their lot, the plaintiffs installed a post at the corner. Defendant removed the post, plaintiffs put it up again, and it was removed and restored a number of times, until this action was commenced to settle the matter.
To the complaint for trespass and to quiet title defendant Dorsch counterclaimed, asserting a prescriptive right to drive over the triangle at the corner of plaintiffs' land by virtue of twenty years' adverse user, and praying judgment establishing his adverse title and enjoining the plaintiffs from obstructing his use of the triangle, and for damages. After trial, the court found as facts that neither Dorsch nor his predecessors in title had asserted any adverse possession over any portion of plaintiff s' land, and that the allegations of the counterclaim seeking to establish adverse possession were unproved and untrue. judgment was entered decreeing that the plaintiff s may erect and maintain a post at the northwest corner of their property, enjoining defendant from moving or cutting down such post and from trespassing on plaintiff s' property, and dismissing the counterclaim. Defendant Dorsch appeals.
Nothing appears in the record which would give defendant any right to drive over the least portion of plaintiffs' land, or to pull down any post located exclusively on and above plaintiffs' land, unless it be a prescriptive right arising by adverse user.
Use of an easement for twenty years, unexplained, will be presumed to have been under a claim of right and adverse, and will in many circumstances be sufficient to establish a right by prescription. Carmody v. Mulrooney, 87 Wis. 552, 554, 58 N.W. 1109; Carlson v. Craig, 264 Wis. 632, 636, 60 N.W.2d 395. Dorsch founds his case on that proposition.
The trial court properly found that Dorsch had failed to establish the necessary twenty years of user. Dorsch's own testimony on the subject covered a much shorter period. The only evidence going back as much as twenty years was that of a witness who lived across the street, and testified that from his house he had seen cars go along the driveway from the front to the rear of the defendant's property several times a week since 1930. That witness admitted, however, that since his house was not directly in front of the driveway, he did not see as far back as the corner of the plaintiffs' property, and his testimony does not establish that the cars which he saw actually traveled over any part of plaintiffs' land.
It is sought to make up for this deficiency in proof by testimony that owing to the small space between the corner of Dorsch's house and the end of his easement over the Vieth property, it is impossible for cars to go from the driveway into his back yard without driving over the corner of plaintiffs' land. There is also direct testimony, however, that while a large car failed in an effort to go from the driveway into Dorsch's back yard while the post installed by plaintiff s at their corner was still there, another shorter and older car also tried and got through. There is no clear evidence that the smaller type of car generally used fifteen or twenty years ago could not negotiate the curve from the driveway into the back yard without passing over plaintiffs' land, nor is there evidence that the cars which the witness across the street frequently saw using the driveway in the earlier years were not of a smaller sort than are now common, which could negotiate the curve without impinging on plaintiffs' premises.
Since Dorsch failed to prove the twenty years' user necessary to establish a prescriptive right, he is not in position to complain of the trial court's adjudication that the plaintiffs may erect and maintain a post at their corner, even though such post may effectively prevent the large modern automobiles from entering his back yard.
By the Court. — Judgment affirmed.