1797m-1 to 1797m-109 1797m-32, 1797m-33 1797m-49 to 1797m-51 272, 281 272, 280, 287 467-469, 475, 476, 478-480, 482 2394-9 161 375, 502 66 (2) (b) 375 - 502 66 (2) (d) 373 (5) (h) 592, 594 2394-9, (5) (1) 372, 374 482 2394-16 476 2394-19 468, 479, 480 2394-19, sub. 1 499, 500 467, 477 2394-48, 2394-49 237, 240, 241 491, 554, 558, 562, 569 365 499, 502 611 2590 138, 142, 143 (5) 529, 531 2591a 531 2591m CASES DETERMINED AT THE January Term, 1917. GIMBEL and others, Appellants, vs. WEHR and another, Re spondents. WEHR and another, Appellants, vs. GIMBEL and others, Re spondents. October 27, 1916-January 16, 1917. Motions: Order to show cause: Judgment: Relief against: Enforcement: Matters to be considered: Evidence: Easements: Right of way: "Practicable" alley: Encroachments. 1. An order to show cause is equivalent to a notice of motion, and the court proceeds thereon as upon a motion. 2. Relief against a judgment upon any ground can be had only pursuant to the Code procedure in the ways prescribed in sec. 2832, Stats., or by motion for new trial under sec. 2879, unless the facts are such as to warrant relief in a direct action to restrain a party from reaping the fruits of an unconscionable judgment. 3. In a proceeding under sec. 2966, Stats., to enforce a judgment which required the performance of an act other than the payment of money or delivery of property,-i. e. that an alley over certain land, twenty feet wide and eight feet high, should be "opened and made practicable," the court properly examined the pleadings in the action wherein such judgment was rendered, and also certain agreements referred to in the judgment, for the purpose of ascertaining its meaning and effect. 4. Where the specification in such judgment as to the width of the alley was, as shown by the record, not intended to be a determination that certain encroachments upon such width by walls, columns, etc., were unlawful, the court, in the proceeding to enforce the judgment, properly received and considered evidence as to the nature and extent of such encroachments and their effect on the use and practicability of the alley; and such evidence is held to support a finding that the encroachments with Gimbel v. Wehr, 165 Wis. 1. in the limits of the alley do not affect its practical usefulness nor invade the rights of abutting owners. 5. It further appearing that the grade of the alley is substantially as it was at the time of a certain agreement referred to in the judgment, and that any variation thereof would violate the right confirmed by such agreement, it is held that the order of the court fixing the grade as it now is correctly interprets the judgment. 6. The owner of, a right of way across the land of another, whether it was acquired by grant or by prescription, is entitled only to a reasonable and usual enjoyment thereof, in view of all the circumstances of the case and of the use then and theretofore made of the premises affected by it, and the owner of the soil is entitled to all the rights and benefits of ownership consistent with the easement. APPEALS from two orders of the circuit court for Milwaukee county: F. C. ESCHWEILER, Circuit Judge. Affirmed. This is a proceeding to enforce a judgment rendered by the circuit court for Milwaukee county January 17, 1906, in a consolidated action. The two orders appealed from are dated respectively May 22, 1916, and June 12, 1916. The judgment in the consolidated action determines and adjudges that Jacob, Isaac, Charles, Daniel, Ellis A., Louis S., and Benjamin Gimbel and Nathan Hamburger, as copartners under the name of 'Gimbel Brothers, and their successors and assigns are entitled to build on the west eighty feet of lots 1, 2, and 3 in block 72 of the Fourth ward, city of Milwaukee; that Henry Wehr, as owner of the northeast parcel of these lots, lying east of the west 121 feet thereof and adjoining the Milwaukee river, is entitled, as appurtenant to his land, to a passageway over the south twenty feet of lot 3 to West Water street, and that the owners of the remainder of these lots 1, 2, and 3 have the right to a passageway over that part of the south twenty feet of lot 3 owned by Henry Wehr, to the Milwaukee river; that Henry Wehr is entitled to have this passageway opened May 1, 1915; that Henry Wehr is entitled to have opened over the parcel of lot 3 (being the forty-one feet next west of Wehr's parcel), |