Vernon v. Nicolai, 125 Wis. 319. of thirty years no right by user or dedication has been acquired, therefore at the time of the commencement of this action he had a right to move his fence into the highway upon what he claimed to be the line of the original survey. On the other hand, the appellant contends that the alleged highway in question was never legally laid out, that the order purporting to lay out and establish the same was void for uncertainty, and that the jurisdictional requirements of the statute had not been complied with, but that the highway as fenced, worked, and traveled became a lawful public highway by user and dedication. From the view we have taken of the case it becomes unnecessary to consider the question of whether there was a highway by user or dedication within the limits of the fences inclosing the same. The court below found that, upon petition duly made and filed for the laying out of the highway, the supervisors met and caused a survey of the proposed road to be made, and incorporated the same in an order signed by them, and by such order duly laid out a highway as prayed for in the petition, which order was duly recorded in the office of the town clerk in December, 1844, and that said public highway has been since used, traveled, and worked as such, and substantially fenced, for thirty years. The respondent concedes that the highway in question was lawfully laid out, and ever since has been a lawful highway, but contends that the fence encroaches upon his land, and that, even though the encroachment has continued for thirty years or more, still the appellant had acquired no rights by user or dedication. We are convinced there was not sufficient evidence to warrant the court below in finding that the fence was not maintained upon the line of the original survey. Upon the facts proved it is established that the highway was located and has always been maintained upon the original survey, and it is therefore unnecessary to consider whether the appellant acquired any rights outside of the original sur Vernon v. Nicolai, 125 Wis. 319. vey by user or dedication. After this highway had been. laid out, worked, and used as such under the original survey, and fenced, for at least thirty years, the respondent seeks to establish, by a survey made nearly sixty years afterwards, that the fence on the line adjacent to his property has not been maintained upon the line of the original survey. The survey under which respondent claims is confessedly indefinite and uncertain. Two surveys were made; one surveyor admitting that he could not locate the lines of the original survey. The other, upon whose testimony respondent relies, testified he made his survey on the assumption to keep respondent out of the road; that he was assuming everything; admits that he was uncertain as to lines of original survey; that, if his survey were adopted, one line of the shade trees would be on the road most of the way, and the other line would be in somebody's land; that according to his survey the greater portion of the road would require an entirely new roadbed, and that to move the road from the present traveled track would disjoint things entirely. In view of the undisputed evidence and the findings of the court respecting the use and occupation of the highway from the time it was laid out, and the fact that the traveled track has always been upon the original survey, such evidence is entitled to but little weight. The laying out of the highway nearly sixty years ago upon the original survey was a practical construction and adoption of such survey. The monuments marking out the survey through the forest plainly indicated the lines of the highway at the time it was laid out. The lines bounding such highway were laid with reference to the original survey, with the aid of all monuments then existing and marking out the survey. Fences have been maintained upon these boundary lines for thirty years before respondent attempted to obstruct. These facts constituted a practical location of the right of way upon the lines of the original survey, and the long-continued occupation under such location for nearly Mueller v. Northwestern Iron Co. 125 Wis. 326. sixty years, together with recognition of monuments or boundaries and acquiescence in boundary lines, cannot be overborne by such indefinite and uncertain evidence of surveyors as appears in the record before us. Madison v. Mayers, 97 Wis. 399, 73 N. W. 43; Nys v. Biemeret, 44 Wis. 104. From a careful examination of the evidence we are convinced that there is not sufficient evidence to support the findings of the court below to the effect that the acts complained of as ground for the issuing of an injunction were done outside of the limits of the survey of 1844, and we therefore hold that the court below erred in ordering judgment for defendant. By the Court.-The judgment of the court below is reversed, and the cause remanded with instructions to grant the injunction prayed for in the complaint. MUELLER, Administrator, Respondent, vs. NORTHWESTERN IRON COMPANY, Appellant. May 4-June 23, 1905. Master and servant: Negligence: Personal injuries: Instructions to jury: Special verdict: Trial: Reception of evidence: Contributory negligence: Assumption of risk: Appeal and error. 1. It is the duty of a master to provide and maintain for his employees a reasonably safe place for the doing of their work, and whether such duty was performed or not is a question for the jury, under proper instruction. 2. The rule requiring the master to furnish his servant with a rea sonably safe working place calls only for a working place free from all dangers which a person in the circumstances of the master, in the exercise of ordinary care, ought to know of, and which, under the circumstances, the servant, in the exercise of ordinary care, is not legally chargeable with knowledge of. 3. In an action for personal injuries to a servant the court charged the jury, without exception, to the effect that if they were unable Mueller v. Northwestern Iron Co. 125 Wis. 326. to say, in answer to the question: Were there any defects in the partition in question in this case? whether the partition which gave way was constructed by the defendant in a reasonably safe manner, then that it was their duty to answer that question in the affirmative, and that they could only answer that question in the negative in case they were satisfied and believed from all the evidence that such "partition was not constructed in a reasonably safe manner." After again calling their attention to the words "reasonably safe" the court continued: "The law does not require the defendant company to construct partitions which are absolutely safe, because the phrase 'reasonably safe' measures the obligation or duty that rested on the defendant company in the construction of the partition in question." The portion quoted was excepted to, but no instruction was given or requested defining ordinary care. Held, that the duty imposed upon the defendant by the portion of the charge in question was the exercise of ordinary care under the circumstances, and that the issue was thereby properly submitted and the duty imposed by law upon the defendant properly stated. 4. In such case the court refused a requested instruction: "An employer is not bound to anticipate every possible risk or accident which may happen to an employee from the premises or appliances in use. He is only obliged to use ordinary care in furnishing premises and appliances which are reasonably safe and suitable. If the employer has done this, and, notwithstanding, an accident occurs, such accident is one of the ordinary risks of the employment which the servant assumes in entering the employment." Held, had this instruction been given it would still have left it for the jury to determine whether the "premises and appliances" so furnished were "reasonably safe and suitable," and would not have given the jury any information as to the standard of care not contained in the portion of the charge to which exception was taken. 5. Such requested instruction was general and misleading, and in conflict with the rules announced by the supreme court. 6. In an action for personal injuries, in submitting a question of a special verdict, the jury were directed that if, in answer to a previous question, they found that the appliance causing the injury was not constructed by the defendant in a reasonably safe manner, and to another question that such appliance was not maintained in a reasonably safe condition by the defendant, then to answer the question: "Was such condition known to the defendant company, or ought it to have been known to said company?" The jury answered this question "Yes" and the two preceding questions "No." Held, that there was no uncertainty in the answer to the question thus submitted. Mueller v. Northwestern Iron Co. 125 Wis. 326. 7. In such case the question submitted was not double, since the word "condition" manifestly related to the unsafe condition found by the jury to exist at the time of the injury. 8. In an action for personal injuries, the injury was occasioned by the breaking down of a partition in a bin whereby a quantity of iron ore was precipitated on plaintiff's intestate. It appeared in evidence that all the bins had been in use about three years and were constructed very similar to the one in question, and thereupon objection was sustained to the question: "During the three years that those bins have been used, have ever any of the partitions come down previous to the time this one came down?" Held, that the objection was properly sustained, the real issues involved being whether the bin in question was in a reasonably safe condition at the time of the injury, and, if not, whether the defendant knew or ought to have known of the defect. 9. The fact that such partition actually fell at the time of the injury at least tended to prove that it was unsafe. 10. Failure to submit to the jury the questions of contributory negli gence and assumption of risk is not error where there was no request to submit such questions, and no evidence to support a finding of such negligence or assumption had they been submitted. 11. No error is committed in excluding an answer to a question asked by defendant of one of its witnesses, where before defendant rested the objection was withdrawn, and thereupon defendant withdrew the question. APPEAL from a judgment of the circuit court for Dodge county: B. F. DUNWIDDIE, Judge. Affirmed. This is an action to recover damages for the death of the plaintiff's intestate, July 27, 1902, while in the employ of the defendant in breaking iron ore in certain bins into which the same had been dumped and loaded from the railway cars for storage, and which bins were about ninety feet long and sixteen feet wide, and formed by partition walls running east and west and terminating against a stone wall on the east and attached to the trestle bent on the west, and which bins were situated in rows side by side under the elevated railway tracks, supported by certain trestlework known as "trestle bents;" that such death was caused by the partition |