#### Town of Hustisford, Appellant, vs. Knuth, Respondent.

*May 12*

June *21, 1926.*

*Highways: Use by abutting owner: Fee in highway: Use not inter- • fering with right of public.*

1. In an action in equity by a town to compel the removal of a culvert constructed by the defendant in a highway in front of his premises, the evidence is *held*insufficient to show an interference with the rights of the public entitling the town to relief, p. 496.

2. The fee to the highway remains in the abutting owners, who may make such reasonable use of it as does not interfere with the right of the public, p. 496.

Appeal from a judgment of the county court of Dodge county: David W. Agnew, Judge.

*Affirmed.*

This is an appeal from a judgment dismissing the plaintiff’s complaint.

For the appellant there was a brief by *Lueck, Clark & Lueck*of Beaver Dam, and oral argument by *Arthur W. ■ Lueck.*

For the respondent there was a brief by *Kading & Kad-ing,*and oral argument by *Harold M. Dakin*and *August Kading,*all of Watertown.

Crownhart, J.

This was an action in equity to compel the removal of a wooden culvert constructed by the ‘defendant in front of his premises, fronting on the Hustis-ford-Woodland highway, where the driveway enters the defendant’s farm from such public highway.

The highway runs in a northerly and southerly direction. The lands in that vicinity, over which the road passes, at the point in question slope westerly and southerly, and the defendant’s lands are on the west side of the highway. Over fifty years ago a culvert was put in the highway at the defendant’s north line for the purpose of carrying the *496water across from the easterly side to the westerly side and thence to be drained on the plaintiff’s land in a natural slope in a semicircle around upon the defendant’s land and onto a farm adjoining at the south, and finally back across the highway. This culvert was finally filled up about fifty years ago, and remained so until 1922, at which time the highway was improved and a new culvert was placed where the old one formerly existed, and both sides of the highway were ditched. Before the new culvert was put in, the'water from the east side of the highway substantially all found its way south along the ditch on the easterly side. In making the ditches along the highway the authorities did not make a ditch where the defendant had his driveway from the highway onto his farm. This resulted in holding the water which crossed the highway through the culvert at his north line from passing along the ditch on the west side of the highway, and which caused it to back up and remain in the ditch or to overflow onto defendant’s land. Defendant thereupon completed the ditch and made a culvert allowing the water to pass through. This culvert did not in any way obstruct travel on the highway or in any wise interfere with the use of the highway by the public. However, complaint was made that the water was diverted from its natural course, and the highway authorities ordered the defendant to restore the driveway to its original condition, which .he refused to do, and this action followed.

It is well settled law that the fee to the highway remains in the abutting owners, and that they may make such use of the highway as may be reasonable which does not interfere in any way with the public’s right in the highway. The evidence in this case clearly shows that the acts of the defendant did not in any wise interfere with the rights of the public, and that his completing the ditch on the west side of the highway resulted in no damage to the town or the public. This was an action in equity, and the trial *497court found no equity in the plaintiff’s position. The judgment of the county court was clearly right.

*By the Court.*— The judgment of the county court is affirmed.