Vernon v. Nicolai, 125 Wis. 319.

of work or furnishing materials in case construction of a building be actually commenced, and is not dependent for original existence either upon the filing of a claim or upon the construction of a building to which it must first attach in order to reach the land. In the latter of these cases the architect's lien was held to have attached to the land the moment excavation for the building commenced. Clearly, if the lien may fasten on the land before any structure exists thereon, it may persist after any such structure disappears. Several of the provisions of our statute (sec. 3314, Stats. 1898) are so inconsistent with the necessity of any structure. for a lien to fasten upon as to preclude belief in any such legislative idea-notably those of excavating, dredging, road repairing, and the like. We conclude that the Pennsylvania rule has no place under our statute, and that plaintiff's lien, having once attached to the land, was not detached by the destruction of the building which defendant had impliedly contracted should remain in existence to enable completion of plaintiff's contract.

By the Court.-Judgment reversed, and cause remanded with directions to take further proceedings and render judg ment in plaintiff's favor in accordance with the foregoing opinion.

TOWN OF VERNON, Appellant, vs. NICOLAI, Respondent.

May 4-June 23, 1905.

Ancient highways: Boundary lines: Encroachment: Evidence: Injunction.

1. Where a highway has been laid out, worked, and used as such under the original survey, and fenced, evidence of surveys made nearly sixty years afterwards, stated in the opinion, is held to be entitled to little weight to establish that the fence on one side of the road had not been maintained upon the line of the original survey.

Vernon v. Nicolai, 125 Wis. 319.

2. The laying out of a highway upon the line. of the original survey is a practical construction and adoption of such survey. 3. Where the monuments marking a survey for a highway plainly indicated its lines at the time it was laid out, the lines bounding such highway having been laid with reference to the original survey, with the aid of all monuments then existing and marking out the survey, and fences having been maintained upon these boundary lines for thirty years, these facts constitute a practical location of the right of way upon the lines of the original survey, and long-continued occupation under such location, together with recognition of monuments and boundaries and acquiescence in boundary lines, cannot be overborne by indefiniteand uncertain evidence of surveys tending to establish different boundary lines.

4. In such case the evidence, stated in the opinion, is held to warrant enjoining an encroachment upon the limits of a highway laid out and surveyed in 1844.

APPEAL from a judgment of the county court of Waukesha county: M. S. GRISWOLD, Judge. Reversed.

This action was commenced to restrain respondent from obstructing a highway in the town of Vernon, Waukesha county, Wisconsin. Respondent is the owner of a piece of land in section 25 in said town, on the east side of which is a public highway known as Big Bend and Waterford road, which has been used and traveled as such for about fifty years continuously prior to the commencement of this action. Respondent purchased his land in 1881, and has owned and occupied it since. October 24, 1903, claiming that the highway encroached upon his land, he notified the board of supervisors of the town to remove the highway to its proper limits on the east side of his premises. October 31, 1903, the board of supervisors notified respondent that they refused to comply with his application, stating that the highway would be maintained as it was and had been since 1844, and that any encroachment thereon would be dealt with in manner provided by law. November 2, 1903, respondent served another notice, in which he stated that he would give the board until the following Wednesday morning to decide

Vernon v. Nicolai, 125 Wis. 319.

whether they would move the highway to its proper limits or lay out a new one. No action having been taken by the town as required by respondent's notice, he moved his fence out into the highway about one rod and threatened to continue such obstruction and occupy such portion of the highway so inclosed. A temporary injunction was obtained restraining respondent from interfering with said highway and from placing any obstruction thereon in front of his premises. The claim of the appellant is that the premises in dispute are a portion of the public highway which have been used, worked, and traveled as such for more than fifty years, and public money expended in the construction, repair, and maintenance of the same for ten years and more continuously prior to the commencement of the action, and that such highway is a duly established highway according to law. Respondent contends that the highway in question was duly laid out by authority of the town board in 1844, but that, while the traveled track does not encroach upon his land according to the original survey laying out said highway, the highway as fenced encroaches upon his land to the extent of about one rod, and that the line fence so encroaching upon his land is not upon the line according to the original survey laying out said highway; that said road was laid out and fences built at a time when the land was covered with timber, and in fencing the same no particular attention was paid to the road lines as laid out.

The case was tried by the court, and the court found, among other things, that on the east side of respondent's premises there was existing a highway known as the Big Bend and Waterford road, which had been used as such since. 1844, and had been traveled, used, and worked as such since said time, and had been substantially fenced for thirty years as it was at that time; that in 1844, upon petition presented to the commissioners of highways of said town, they being. the supervisors, said supervisors caused a survey of the pro-

VOL. 125-21

Vernon v. Nicolai, 125 Wis. 319.

posed road to be made, and incorporated said survey in an order, and duly laid out the highway in question, and recorded the order so laying out the same, and that the actual existing road along the respondent's east line is, and has been as long as the same has been known or used as a highway, approximately upon the line indicated by the order recorded in 1844, and that the highway laid out pursuant to such order has been substantially used, worked, and opened on the east side of respondent's premises; "that, when said survey was made and said road was laid out and opened in 1844, the country was new and wild, and the fences were put up, as they are always in a new country, without any new survey being made, and the road through it may vary to the extent of a few feet from the line of the original survey, the usage of the highway ever since said time must be referred to the original order; and the court finds in this case no evidence of dedication whatever." The court also found that no attempt was made by the town to have the fence placed on the true line as surveyed for such highway, and that there was simply a passive acquiescence in the fences remaining where they had been placed, and that the use and travel upon the fence lines must be referred to the original survey and order laying out the highway, and that such fences on the east side of respondent's premises encroached upon his land. The court found, as conclusions of law, that the appellant was not entitled to an injunction, for the reasons that the land in question was not within the recorded survey and limits of the highway as laid out, and that there was no dedication of a public highway at the place in question, and ordered the action dismissed. Judgment was entered dismissing the action and for costs against appellant, from which this appeal was taken.

For the appellant there was a brief by Ryan, Merton & Newbury, and oral argument by T. E. Ryan.

For the respondent there was a brief by Lindley Collins,

Vernon v. Nicolai, 125 Wis. 319.

attorney, and D. J. Hemlock, of counsel, and oral argument by Mr. Hemlock.

KERWIN, J. The principal inquiry in this case is whether the land which the respondent sought to take possession of is in fact a part of the highway or outside of its limits. It is established that the traveled track is within the limits of the highway as laid out and established in 1844, but it is claimed by respondent that the fence on the west side thereof is about one rod west of the west line of such highway as originally surveyed and laid out, and to that extent encroaches upon his land. He admits that the highway was lawfully laid out in 1844, and a proper order made and filed as required by law, and that the order is sufficiently definite. to comply with the law, and that the traveled track adjacent to his premises, ever since 1844, has been upon such highway as surveyed and laid out; but that in the building of fences on the lines of such highway slight deviations from the actual lines as surveyed were made, and that the fences were not originally constructed, nor since maintained, upon the lines of the original survey, but have deviated a few feet. therefrom; that the use of such highway ever since its establishment has been in subordination to the original survey and not adverse to the owners of lands included within the fences as built inclosing said highway and not embraced within the original survey; that no rights have been acquired by the public beyond the limits of the survey of said highway as originally laid out and recorded in the order establishing the same. In short, the gist of the respondent's argument is that a lawful highway was laid out and recorded in 1844 · and used and traveled as such ever since, but that the fences inclosing the same were not constructed upon the lines of the survey but varied in places from the true lines, and on the west side thereof encroach upon his premises a few feet; and that although such fences have been maintained for upwards.