Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1875-03-25

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OsCEoLA.- RIVER LANDING
AND HIGHwAY.-One of the most i'm
portant cases tried at the late term Of
Court was the case of Cox and Nc
Cabe against Joseph Kirchenbusch.
The issue involved in this case, and
brief outline of the testimony and the
law in relation to the rights of the pub
lie to highways, appear in Judge Mills
charge to the jury. We are allowed
to publish the same in full. Messrs
Bushnell 81 Clark appeared for plain
tiffs and w. E. 81 Geo. 3. Carter for
defendant. The charge reads:
Cox AND McCABE VS. JOSEPH KGRcHENBUscH.
The plaintiffs sue to recover of the defenT
dant damages for banking cord wood on GER
tain land embraced in section IA, lot l, town
north, range two west, which land, so far
as the verdict of the jury is conc erned, must
be regarded as belonging to the plaintiffs in
| fee
There is no dispute but that the defendant
before the commencement of the action IN the
summer Of 1873, did haul and place upon
| the nlaintiffs' land from 100 to 1870 cords OF
wood: and no evidence that the plaintiffs con-
sented thereto, without compensation. me
nlaintifs are therefore entitled to recover
COMPENSATION to the value of such use OF the
land by the defendant unless he can show some
legal right to use the plaintiffs land.
The defendant iustifes his act on the ground
that he piled certain cordwood, that for W hlcf
suit Is brought, on public highway running
through the plaintiffs land; the said highway
being part of public landing adjoining the
navigable part of Grant river-that defendant
piled the wood on the margin of the highway
and on the public landing for the purpose o
shining it awav-that it was shipped away
on fiat boats almost as fast as hauled there
go that the defendants use of the landing was
not such as could have interfered with the
equal rights of the plaintiffs and Others IN
like use of the landing.
The first question Of fact for the jury to de-
eide is, whether there was a public highway
leading to public landing aud also such
landing within the limits of which or the high
way the defendant piled his wood.
There is no evidence to show that highway
was laid out by the public authority on thu
ground on which the wood was piled-ther'
saa evidence to show that any owner 1a 70. 9t tht
ication of any portion of it to the public for
the purpose of landing. If there is high
way and public landing whore the wood wa
piled, it must be proven by user on the par
of the public.
If the jury find at that the points where de
PENDANT piled his wood there was a genera
landing place where produce was shipbed
away and where freights were received by
fat boats coming up Grant EVERYWHERE
wood and other products were shipped in sucf
quantities and with such frequency as to show
that the inhabitants Of the adjoining country
used the landing for these purposes--that il
has been so used continuously for ten years OF
more Immediately preceding the commence
ment of this action, the jury will be justified
in finding public landing at this point
And if the jury find public landing within
the limits of which defendants wood was piled
it will follow that there was a public road
leading to it; in fact the public landing would
be part of the highway
And there might be highway where the
wood was piled although there may be no pub
| lie landing there-provded the jury find that
the site has been used as part of highway
4 nfY bno
BY the public generally for the purpose of gen.
eral travel and carriage of property for the
period of at least ten years, continuously imme'
diately preceding the commencement of this
| action.
But should the defendant show he piled his
wood upon a public landing the plaintiffs
ground, to complete his Justification, it must
appear that he used the landing only for the
purpose of shipping. He cannot make wood
yard on plaintiffs land he cannot bank his
wood there to keep it there for the purpose of
sale The owner of land on which there is a
public highway is entitled to every beneficial
use to which the surface of the road can be
applied, in cording wood thereon or otherwise.
so as he does not interfere with the public right
of travel and the carriage of property upon
| such highway. Strangers travelling on such
highway, and carrying their property to a
1
wood there, keeping it for sale in such quali>
| ties rs may i1tefere with the equal rights Of
others. The public can claim no rigltt to indie
finite 0ndunnledsured quantity Of ocner's land
| on tie ground that tie neighborh0Od has corded
rood there for great number Of gears Without
| objection. There nattStbe definite limit to the
claims of the public. In this case it must be
limited to the surface of the highway if such
there was If there was a highway, and pub
| lie landing wherein the defendant corded his
| wood, if he shipped it away so soon that it
would not have interfered with the equal
| rights of others, he has done nothing more than
| the public may do, and is not responsible in
| this action.
But if the defendant used the highway and
landing for the purpose of cordng up his wood
| in such quantities and keeping it there for
such time as would have seriously interfered
with the legal rights of other persons, his act
| is not covered by the rights of the public, and
he is responsible to the owner of the land to
the same extent as if there was no highway
| there.
The jury found in favor of the plain
tiffs generally, that is, as to the de-
maud of the plaintiffs, and also an
swered the special questions submitted
to them by the Court in the mega
tive, that there was no highway or
public landing within the limits of
which the defendants wood was piled.
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THE RAILROAD WAR.-There is no
prospect of a cessation of hostilities
between the Pennsylvania and Balti.