Dhein v. Beuscher

Pinney, J. The question whether the strip of land in disputé had been held adversely by the defendant and those — 324 — through whom she claims in privity with her in respect to it, so that she obtained thereby a title to it, is the vital question in this case, for, if not adversely held, the possession or occupation of it by the defendant must be deemed to have been under or in subordination to the plaintiff’s title. Sydnor v. Palmer, 29 Wis. 252. The proof shows beyond controversy that this strip is a part of the S. W. J of the N. W. J of section 16, which has been described and conveyed as such in all the conveyances from the state to the plaintiff’s grantors, under which he claims. In like manner the forty-acre tract immediately adjoining it on the east has been'described and conveyed to the defendant Sarah Beuseher and her grantors, immediate - and reinóte, as the S. E. \ of the N. W. J of the same section, and in none of the deeds through which she claims was there any description including the- strip in dispute or any part of it. The fence up to which the defendant asserts claim of title was built at a very early day, and had been repaired by the parties who had owned the lands from time to time, each repairing a particular half of it, is not coincident with the true line between the estates, is not built on a right line, but is curved and irregular; ahd, though it is said that there were one or two surveys of the line a great many years ago, which substantially conformed to the line of the fence, the evidence in relation to them is vague and unsatisfactory, and there is no evidence to show whether the fence was built or designed as a line fence between the two tracts, nor is there any evidence to show that it was ever agreed on as such, though there was, it is said, an oral agreement that each owner should repair his half. The plaintiff did not occupy his lands adjoining the fence, except for pasturage a part of the time, until in recent years; • but the defendant and her grantors, immediate and remote, had for more than thirty years cultivated the lands on their side up' to the fence. The evidence does not show that they at any — 325 — time made any open or specific claim of title to this strip, or that the true location of the line ever became the subject of ' consideration, until the agreement of May 11, 1885, was made in respect to it; and this was followed by the survey made by. Mr. Leins in May, 1886, when the plaintiff built about eight rods of his part of the fence upon the new line, and ever afterwards maintained it until it was torn down by the defendants, with the remainder of the fence on his part of the line, which he built in the spring of 1891, so far as the evidence shows, without objection on the part of the defendants or any one else. It is clear from the evidence that the defendant has not occupied the strip adversely long enough to gain title to it as by prescription, nor did any one of either of her grantors, immediate or remote, hold it for the period of twenty years, adversely or otherwise. The several conveyances under which she claims title do not include or describe it, and wholly fail to show any privity between her and them in relation to it which would entitle her to tack their possession to hers in order to make out the necessary twenty years’ adverse possession. The cases on this subject in this court are clear, and settle beyond question that the defendants’ claim of title by adverse possession cannot prevail. In Graeven v. Dieves, 68 Wis. 317, 321, Cole, C. J., quotes the language of Dixon, C. J., in Sydnor v. Palmer, 29 Wis. 252, that “ evidence of adverse possession is always to be construed strictly, and every presumption is to be made in favor of the true owner. Such possession is not to be made out by inference, but by clear and positive proof.” And Cole, C. J., adds: “ The presumption is that the plaintiff entered under his deed. The possession given him by his grantor was only coextensive with his title, and was restricted to the premises granted. There are doubtless instances where the successive possessions of different occupants have been regarded as a single continued — 326 — possession, but we do not see bow that can be held as to the excess here, for the grant is limited to the west twenty-five feet, and conveys nothing beyond that. Upon what principle, then, under such a grant, can the plaintiff claim that he acquired some right to a strip outside of the premises described in the deed? We see nothing in the case which will warrant such a claim. When Kriege [plaintiff’s grantor] quit the possession of the disputed strip, the seisin of the true owner was restored, and an entry after-wards by the plaintiff upon such strip constitutes a new disseisin; but under his deed he can claim no right to that piece of land, founded upon the adverse possession of his grantor.” This is in accordance with Childs v. Nelson, 69 Wis. 125, 135, and many cases there cited, and Fairfield v. Barrette, 73 Wis. 463, 468, and Sheppard v. Wilmott, 79 Wis. 15, 19, 20. In Pioneer Wood Pulp Co. v. Chandos, 78 Wis. 526, 532, the cases above cited which had preceded it were distinguished from that case by the fact that Rablin did not abandon possession, but continued his adverse holding until the premises adversely held by him were sold on execution and conveyed by apt description to the claimant. It was, however, claimed by the defendants’ counsel that the case falls within the rule laid down in Tobey v. Secor, 60 Wis. 310, as to cases where owners of adjacent tracts had agreed upon a. dividing line between their lands, and had actually claimed and occupied the land up to such line on each side continuously for twenty years, and that, therefore, the possession of the defendant was adverse, and created title in her to this strip by prescription. Whether this defense was made out by the evidence, as well as the general claim of title by adverse possession for twenty years, was submitted to the jury under proper instructions, sufficiently favorable to the defendants. The charge of the circuit judge contained all' that was necessary to be said on these points. It was submitted to them as “ the first and — 327 — most important question” for them to find, “Was this line,— this old rail fence,— was that established as the true line between the parties, or was it as a matter of convenience in an early day when the ground was covered with timber, and when they were .not, perhaps, as particular? Was it a temporary arrangement until they could afterwards determine the line? It must be under a claim of title. There must be some evidence that the parties agreed upon the old fence as the true line; or did each occupy up to the old fence, claiming title ? ” These propositions were again repeated, and stated with more particularity, if possible. The claim of adverse possession, and whether there had been any agreement to the old fence as a line, and subsequent possession and claim had been in accordance with that line, were questions of fact to be found by the jury under the instructions of the court; and the jury found them against the defendants. This finding is sustained by competent evidence. The rule as to what must be shown to make out the defense. founded on an agreed line and subsequent possession and claim of title in accordance with it, is fully stated in Fairfield v. Barrette, 73 Wis. 468, and cases there cited, and need not be restated, as the finding of the jury must be regarded as conclusive on this point. The possession required by the statute to constitute the twenty years bar must be under claim of title in order to be adverse. This has been held in the many cases decided on the subject by this court. Schwallback v. C., M. & St. P. R. Co. 69 Wis. 298; Hacker v. Horlemus, 74 Wis. 21, 24, 25. Mere possession is not enough. “ Any one in possession, with no claim to the land whatever, must, in presumption of law, be in possession in amity with and in subservience to the legal title.” Harvey v. Tyler, 2 Wall. 349. “The whole inquiry is reduced to the fact of entering and the intention to usurp possession.” Probst v. Presbyterian Church, 129 U. S. 191, — 328 — 192; Brown v. Cockerell, 33 Ala. 38. And the circuit court rightly instructed the jury accordingly. The second and third requests on the part of the defendants to charge were properly refused, because the general charge embraced all that was material and proper for the guidance of the jury on the subjects referred to, and the written agreement was left for the consideration of-the jury, with all the other facts and circumstances to aid the jury in arriving at a conclusion. The fourth request was improper, in view of the evidence and the rulings of this court above referred to, there being no evidence that would justify the tacking of the possession of the defendant’s grantors to her possession, in order to make out the bar of twenty years. And the fifth request1 is obviously incorrect, in view of the evidence, for the fact alone that the defendant was actually and lawfully- in possession when the fence was built would not justify the defendants in taking it down and removing it from the land; and was liable to mislead the jury, in vriew of the fact that, if the plaintiff — 329 — or bis grantors had not lost the title to this strip of land, which they obtained and held by deed, by reason of any of the claims of the defendant, then he had an undoubted right to enter upon it in a peaceable manner and build his part of the fence, under the agreement, on the real line between the tracts, although the defendant was in the actual occupancy of the strip. Her possession is deemed in such case to be in subordination to his legal title. There is nothing to show that any opposition or objection was made to the plaintiff’s going on the premises and building the fence. He had built about eight rods of the fence five years before, and had been in possession of that part of the strip ever since. When he completed his fence he had inclosed as his own land all that part of the strip along the share cf the fénce assigned to him to build. He had both title and possession, and the latter by peaceable and lawful entry. This is established by the verdict. “ A remedy of the same kind as by recaption in the case of personal property is also given to the owner for injuries to real property, which is by entry on lands and tenements -when another person, without any right, has taken possession thereof; but this remedy must be peaceable and without force, and a possession thus acquired is lawful.” 3 Bl. Comm. 5; Sheppard v. Wilmott, 79 Wis. 15, 18. There can be no doubt but that the entry of the defendants upon the., lands of the plaintiff thus inclosed, and taking down and removing not only the fence then recently built, but that which he had built and maintained for five years previously, was. a trespass for which the plaintiff might maintain an action. At the time the trespass was committed, therefore, the plaintiff was lawfully seised and in possession‘of the premises, and had a right to maintain this action for the trespasses so committed by the defendants. Some question was made in respect to rulings upon the admission of evidence, but the objections taken do not seem — 330 — to require particular notice. TJpon the whole record we are of the opinion that the judgment of the circuit court is correct and should be affirmed. By the Court. — The judgment of the circuit court is affirmed.