Nys v. Biemeret

ObtoN, J. The survey and plat of Eastman’s addition to the city of Green Bay were made in 1857, by John Y. Suydam, county surveyor. Acceording to the face of that plat, it seems that the north tier of lots in block thirty-one are marked in figures, showing their dimensions as fifty-three feet in width by one hundred and fifty-nine in length, except lot thirteen, the width of which is not given; and that the lots in blocks ten and nine, immediately south of block thirty-one, correspond in scale with those in that block, with no figures thereon to indicate the width. The strip of land in dispute is claimed by the plaintiff to be twenty-two feet in width, on the west side of lot nine, in block nine, which, if belonging to lot nine, would make all the lots in that block, including lot thirteen, the last lot in the block east, fifty-three feet in width; but if belonging with lot eight, owned by the defendant, the eastern lines of all the lots in that block would be moved east-wardly twenty-two feet, and make lot thirteen fractional, of thirty-one feet in width; and twelfth street, lying west of block nine, would be moved correspondingly eastward, and would not be straight with a street which meets it at the southwestern corner of block nine, running northwardly from East River through “Whitney’s addition.” It is claimed by the plaintiff that the recorded plat shows the lines and proportions, of the lots, and the situation and lines of the streets, and establishes his theory and claim to be correct, and the strip in question to belong to lot nine; and by the defendant, that the plat, giving no figures of the width of lot thirteen, warrants the inference that, by the original survey and laying out of the land into lots and blocks, lot thirteen was made fractional, and less than fifty-three feet in width, and therefore the strip belongs to lot eight. [109] Experience bas shown that original surveys, and the lines and proportions of maps and plats, are very unreliable; and the evidence has certainly not established sufficiently the correctness of this plat to make it of much use on the question of boundary in this ease; and especially when it inferentially tends to establish the claims of both parties.-. The plaintiff’s suit is in ejectment, and-he must show at least a prima facie title to the premises in himself, and cannot recover upon either the weakness or want of title in the defendant. The evidence of possession and acts of ownership, and of agreements or understandings as to lines or fences, is not of such a character, as, if admitted to be true as either side claims it, would establish a legal title, adverse possession, or estoppel; and, being in dispute, the finding of the circuit court on such matters will not be disturbed. As reported, the evidence of Suydam as to his survey, made at the instance of at least one of the parties, is very uncertain, and somewhat contradictory. His testimony, in effect, is, that he commenced surveying and measuring from a cedar post which he set and established by the original survey, near the .corner of block four; and that he run eastwardly, giving each lot its proper width, until he came to the west line of-lot nine, which he found seventeen feet west of the fence as it now stands between lots eight and nine. He speaks of finding a stone, or “ the stone,” on the west side of block nine, but does not identify it as being an original monument. He testifies, that “ he cannot say that the present lines, as occupied, are not according to the original survey.” In fact his whole testimony, as reported, is very meagre, disconnected and unsatisfactory, as evidence of a true boundary; and the same may be said of Heyrman and his evidence. If original monuments can be found and identified, they will govern. Marsh v. Mitchell, 25 Wis., 706. Such monuments should be looked for at the lot or block in dispute; and [110] if none can be found there, more distant monuments may be consulted, from which a survey and measurement may be made. If no certain monuments can be found, nor any data to determine courses and distances, a lesser degree of testimony may be resorted to; and long continued occupancy and acquiescence, and even reputation and hearsay as to boundaries, may have weight. Boardman v. Reed, 6 Peters, 328; 1 Greenl. Ev., § 139. And, under the uncertainties as to monuments, courses, distances, calls and measurements, in this case, evidence of this nature was not objectionable. It appears that the plaintiff, soon after coming into possession of lot nine, placed a fence on the line which the defendant claims is the true line, and such fence remained until the year 1875; and that certain lots in block eight, lying along twelfth street, were occupied and their lines determined and fences built by stakes standing in 1857, the year of the orignal survey; and that twelfth street itself has been used according to such lines for at least fifteen years; and that lots 25 and 29 in block nine were fenced by the owner according to stakes still standing on the four corners of the lots. This evidence tends very strongly to show the correctness of the lines of lots eight and nine as now occupied, and is in agreement with the common use and occupancy of these blocks for many years. Considering the uncertainty and unsatisfactory nature of the evidence, we think we ought not to disturb the finding of the circuit court in respect to the true boundary of lot nine. As to the error assigned for allowing the defendant to file an amended answer making a general denial, when the original answer failed to deny the allegations in the first subdivision of the complaint (relating to the title of the plaintiff), itis sufficient to say that a failure to dewy does not amount to such a direct and affirmative admission as would bind the party. The facts not denied “ are to be taken as true ” for the purposes of the action under sec. 33, ch. 125, R. S., and require no proof. The [111] court might very properly, for good reasons shown and upon proper terms, allow an amendment, making a fuller denial of the facts, not at all in conflict with Ballston Spa Bank v. The Marine Bank and others, 16 Wis., 120; and we think it was discretionary with the court in this case to allow the amendment, and no abuse of such discretion. By the Court. — The judgment of the circuit court is affirmed, with costs. Ryak, C. J., and LyoN, J., took no part.