Van Roy v. Watermolen, 125 Wis. 333. For the appellant there was a brief by Sheridan & Evans, and oral argument by F. D. Merrill. V. I. Minahan, for the respondent. WINSLOW, J. This was an action of trespass to real estate commenced in justice court and brought by appeal to the circuit court. It appeared that there was a ditch in the highway in front of the plaintiff's premises and upon his side of the highway in which water ran during wet weather, and that a private ditch ran from plaintiff's close into this highway ditch; that the defendant caused his cattle, several in number, to be driven to the highway ditch for the purpose of drinking, and that they trampled down the banks of the ditch, causing the water to spread out, and disturbed the outlet of plaintiff's private ditch so as to prevent the free flow of water therein and cause it to back up onto plaintiff's premises to some extent. This was held to be a technical trespass, and rightly so. This was not the use of the highway for travel, nor was it a mere incidental turning aside of the cattle to drink as they were being rightfully driven along the highway. Had they been driven to the plaintiff's side of the highway to graze thereon there could be no doubt that the act would be a trespass; and no difference in principle can be pointed out when they were driven there to drink instead of to graze. Sec. 1347c, Stats. 1898, does not touch the question here presented. There is no other question in the case which merits consideration or treatment. By the Court.-Judgment affirmed. Pecor v. Oconto, 125 Wis. 335. PECOR, Respondent, vs. CITY OF OCONTO, imp., Appellant. May 5-June 23, 1905. Municipal corporations: Negligence: Personal injuries: Defective sidewalk: Notice of injury: Sufficiency: Contributory negligence. 1. In an action for personal injuries from a defective sidewalk the notice of injury correctly described the hole in which plaintiff was injured as six or seven feet from the lot line and that it was about twenty-six by fourteen inches in size. It appeared from the undisputed evidence that there was but one hole in that neighborhood; that the city officials found and inspected it after the notice was served, and that the sidewalk, at the place in question, consisted of three longitudinal twelve-inch planks. Held, that the notice locating the hole in "the outside edge of the sidewalk" informed the officials that some part of the hole must be in the second plank from the outside, and was not misleading. 2. It is not negligence in law for a person passing along a sidewalk composed of three longitudinal planks to step onto either of the outside ones, nor to intentionally step upon a board covering a hole with no knowledge either that there was a hole thereby concealed or that the board was so thin as to present danger of giving way under the person's weight. APPEAL from a judgment of the circuit court for Oconto county: SAMUEL D. HASTINGS, Circuit Judge. Affirmed. Action for personal injuries suffered by plaintiff in stepping into a hole broken out of a sidewalk which had been covered by a thin board insufficient to support plaintiff's weight. The sidewalk consisted of four longitudinal twelveinch planks, of which the one nearest the fence had disappeared at the particular place in question, leaving only three. The notice described the hole as twenty-six inches long by fourteen inches wide at the exact place where the accident occurred, but in "the outside edge of said sidewalk." The testimony was conflicting as to whether it was in the outside plank toward the street or in the one next to it. All agreed that it reached the edge between the two planks. The jury Pecor v. Oconto, 125 Wis. 335. found it to have been in the inner or middle plank. They also found the various other elements of responsibility on the part of the city and that the plaintiff was not guilty of any want of ordinary care. Defendant moved to set aside the finding as to the location of the hole, to substitute answer locating it in the outside plank, and to reverse the answer as to contributory negligence; both of which motions were denied, and judgment entered on verdict, from which defendant appeals. The cause was submitted for the appellant on the brief of D. G. Classon, and for the respondent on that of F. X. Morrow, attorney, and Pierre Martineau, of counsel. DODGE, J. We can discover nothing of prejudice or error in either the answer of the jury with reference to the location of the hole in the sidewalk or in the refusal of the court to change it. The location of the hole was correctly described in the notice as six or seven feet from the lot line, and the city officers were notified that it was about twentysix by fourteen inches, which informed them that some part of it must be in the second plank from the outside; and the evidence is entirely undisputed that there was but one hole in that neighborhood, and that the city officers found and inspected it after the notice was served. Clearly, the description of such a hole as in the outer edge of the sidewalk neither could nor did in any wise mislead. We cannot bring ourselves to appellant's view that it is negligence in law for a person passing along a sidewalk composed of three longitudinal planks to step onto either of the outside ones. Presumptively the whole width of the sidewalk is safe, and we do not think it matter of common knowledge that the ordinarily careful person always confines himself or herself to the exact center of the sidewalk. Neither can we say that it would have been negligence in law if the plaintiff intentionally stepped upon the board covering this Krause v. Krause, 125 Wis. 337. hole with no knowledge either that there was a hole thereby concealed or that the board was so thin as to present danger of giving way under her weight. If the danger was not obvious and she had no knowledge of it in fact, it cannot be said as a matter of law that she was guilty of negligence in coming in contact with it. These are the only two errors assigned, and in them we find nothing of merit. By the Court.-Judgment affirmed. KRAUSE and wife, Respondents, vs. KRAUSE and others, Appellants. May 5-June 23, 1905. Equity: Setting aside conveyance: Findings. 1. In an action to set aside a conveyance of real and personal property made in consideration of the support and maintenance of grantors, the court found that the grantees had breached the contract under which it was conveyed, and specifically found that the personalty had been included when a wrongful transfer of the land had been made to third persons. Held, that a judgment which, in restoring grantors to their property rights, awarded them the real estate and left the personalty in the possession and ownership of the grantees, completely and effectively passed upon all questions as to the personalty. 2. In such case the fact that a sum of money was paid the grantors' daughter pursuant to the terms of the agreement for their support, etc., cannot be made the basis of an equitable claim against them, in view of the facts that the personal property was awarded the grantees and that the grantees had had the use and income of the real estate for five years. APPEAL from a judgment of the circuit court for Oconto county: SAMUEL D. HASTINGS, Circuit Judge. Affirmed. On the 18th day of June, 1898, the plaintiffs, planning to be relieved from the burdens incident to conducting their VOL. 125-22 Krause v. Krause, 125 Wis. 337. farming affairs, and to provide for their support during their old age, entered into an agreement with Fred Krause, their son, one of the defendants, whereby they deeded their farm to him in consideration of his agreeing to furnish them during their joint lives certain articles and money yearly; to allow them the use of a certain specified amount of land and the occupancy of the house, and after the death of either to furnish the survivor three fourths of the goods agreed to be furnished both; to pay Annie Krause, their daughter, $150; and to give a mortgage to secure the execution of the agreement. The mortgage was executed according to the agreement, and on July 5, 1901, in accordance with the condition of this agreement, Fred Krause paid $150 to his sister, Annie. At this time the mortgage was satisfied of record, plaintiffs, who are unable to read or write, being informed and believing that they were satisfying the mortgage as to the payment of the money made to their daughter, Annie. Fred Krause carried out his agreement until October 5, 1901, when, with the knowledge and consent of plaintiffs, he and his wife transferred the real and personal property to their brother Louis Krause and his wife, Rose. The real estate was then worth $1,600 and the personal property about $300. Louis paid Fred $650 in cash, and also paid a note for $75 owed by Fred. For the purpose of obtaining money to make these payments to Fred and to raise other money for his personal needs, Louis executed a mortgage for $900, which covered his own home of eighty acres, worth about $4,000, and this property obtained from the plaintiffs. Louis also paid a mortgage securing $100, which was upon the property when first conveyed, and executed another for the same amount to the same party and to secure the same debt. These mortgages are still unsatisfied. Louis and his wife had a great deal of trouble with plaintiffs. There is evidence in the case of assaults, threats of killing, the taking away of plaintiffs' property, and numerous wilful annoy |