#### Rhodes and others, Appellants, vs. Halvorson and others, Respondents.

*November 20*

December *11, 1903.*

*Trespass: Unrecorded highway: Statutes: Evidence: Appeal and error: Harmless error.*

1. In an action for alleged trespass in cutting down fences on

plaintiffs’ premises, alleged to he a public highway, the evidence considered and *held*to warrant the jury in finding that the road in question had been used and worked as a public highway for a period of ten years before the commencement of this action, and hence, under sec. 1294, Stats. 1898, that the *loons in quo*was a public highway.

2. It is not prejudicial error to admit immaterial evidence, which is harmless in its effect on appellant.

Appeal from a judgment of the circuit court for La Crosse county: J. J. Feuit, Circuit Judge.

*Affirmed.*

This is an action for an alleged trespass for the cutting down of fences on the premises of appellants. Respondents entered appellants’ premises and caused the fences to be removed upon the ground that they closed up the public highway, established by twenty years of adverse public user, and by having been traveled and worked for a period of ten consecutive years before this action was commenced. Appellants áre the owners of the premises through which the alleged highway runs. Their land consists of two forties. On the division line between the forties is a fence, beside which the road runs. On the opposite side of the road is appellants’ pasture land. The road runs north and south. The south end of the road runs into a public highway known as the “JB'ostwick Yalley Road.” The north end continues through lands lying in what is known as “Irish Cooley.” The evidence shows that years ago there were gates at the ends of the road on respondents’ land. Some of the witnesses testified that the road had been open and used by the public for *100more than twenty years, and there was other evidence tending to show that the road had been so used and worked by the town authorities for ten years and over. The land lying next north of appellants’ is occupied by one Filter, who during the last four or five years at times maintained a fence and gate over the road at or near the line between himself and appellants. He testifies that he erected the gate, and closed it for a few weeks in the spring and fall season, to keep his cattle from straying, but not intending to prevent the public from using the road. The jury found that the road had been used adversely by the public for the period of twenty years before this action was commenced, and that it had been used and worked by the town as a public highway for ten years or more. From the judgment on the verdict in respondents’ favor, this appeal is taken.

For the appellants there was a brief by *Higbee & Bunge,*and oral argument by *George Bunge.*

For the respondents there was a brief by *Miller & Wolfe,*and oral argument by *W. F. Wolfe.*

SiebecKER, J.

Sec. 1294, Stats. 1898, provides, “All roads not recorded which shall have been or shall be used and worked as public highways ten years or more shall be deemed public highways,” unless it comes within one of the exceptions under this section. These exceptions are not material to this case. Upon the evidence, the jury, under proper instructions, found that the *locus in quo*had been used and worked as a public highway for a period of ten consecutive years prior to the commencement of this action, namely, from 1890 to 1901. Appellants insist the court erred in submitting this question to the jury, for the reason that the evidence shows that fences and gates were maintained across the traveled track of the road on their land. ■ The evidence establishes that no gates were maintained at or near the south line, where the track passed over appellants’ land, for a period *101of at least sixteen years prior to tbe commencement of tbis action. Some of tbe witnesses testified tbat a fence and gate bad been maintained across tbe traveled road at tbe north line of appellants’ land for a considerable period of years between 1890 and 1901. A number of witnesses, on tbe other band, testified tbat they traveled over tbe road frequently during tbis period, and found it open, and observed no fence or gate. Mr. and Mrs. Filter, who occupied tbe land adjoining appellants’ on tbe north, testified to tbe free and unobstructed use of tbe road by tbe public for twenty years or more immediately preceding tbe commencement of tbis suit, .and tbat they did, during tbe spring and fall seasons in recent years, keep a temporary gate and fence at or near tbe division line between their land and appellants,’ across tbe traveled track of tbis road, to keep their stock from straying off their premises. They also testify tbat such fence and gate were kept closed only a few weeks at a time during such seasons, causing slight, if any, obstruction to tbe use of tbe road by tbe public, and were not intended to close up the road, or prevent tbe public from using it as a public highway. Tbis is all tbe testimony tending to show tbat gates and fences cut off public travel within tbe ten-year period covered by tbe verdict of tbe jury. There is an abundance of evidence sustaining tbe finding tbat tbe road bad been worked as a public highway by tbe proper town authorities throughout and prior to this ten-year period. Upon tbis state of tbe evidence, we must bold that tbe jury were warranted to find tbe road in question bad been used and worked as a public highway for a period of ten years before tbe commencement of tbis action, and tbat the *locus in quo*is a public highway. Among tbe cases in tbis court which recognize tbis principle are *Hart v. Red Cedar,*63 Wis. 634, 24 N. W. 410; *Blute v. Scribner,*23 Wis. 357; *Hanson v. Taylor,*23 Wis. 547; *Scribner v. Blute,*28 Wis. 148; *Chippewa Falls v. Hopkins,*109 Wis. 611, 85 N. W. 553.

*102It is contended tbe court erred in receiving in evidence a large number of records pertaining to organizations of road districts, and tbe election of officers, levying taxes, and expending money for road improvements, because tbe evidence fails to show it affected appellants’ premises. It is not entirely clear that all tbis evidence was material, but we perceive no prejudice in its admission. In so far as immaterial evidence was received, it was harmless in its effect, and could work no prejudice to appellants. Other exceptions were argued, which relate to branches of the case that have become immaterial, since, under the third and fourth findings of the jury, which were properly submitted, the *locus in quo*must be deemed a public highway.

*By the Court.*— Judgment affirmed.