Ayers v. Reidel

Pinney, J. 1. The circuit court properly ruled that the evidence established the line surveyed by Stockwell as the true line between the parties. The only objection urged is that there was evidence before the jury of what is called the “ Reddan Survey,” which was materially different from the line as determined by Stockwell. All the evidence concerning'the Reddan survey was hearsay, and it does not appear that any record or plat was made of it, and he was not called to prove it or t'o show how or in what‘manner he determined, if at all, the center of the section. He did not make any survey of the line in dispute, nor does it appear that he made a survey of any tract in the section, but whatever he did was in relation to surveying a road for the town. [283] 2. It is contended that the court erred in refusing to direct a verdict for the defendant — first, on the ground that the undisputed evidence showed that the defendant had held continuous and adverse possession of the premises under claim of title for more than twenty years before the commencement of the action; and, second, that it conclusively appeared that the boundary line in question had been settled by acquiescence more than fifteen years before the action was brought. What constitutes adverse possession is for the court to determine, but the facts which establish it are for the jury, and the question of the character of the possession is generally submitted to them. Gross v. Welwood, 90 N. Y. 638. It was for the jury to say what was the real character of the defendant’s possession of the strip in dispute, and whether it -was taken and maintained with an intention by the defendant to oust the true owner,— whether it was adverse to him in fact. To constitute adverse possession there must be the fact of possession and the hostile intention,— the intention to usurp possession; and, if there be possession of land b3r one not the true owner, the presumption of law is that such possession is in accord or amity with, and in subservience to, the true title and legal possession of the owner. Dhein v. Beuscher, 83 Wis. 316; Schwallback v. C., M. & St. P. R. Co. 69 Wis. 298; Hacker v. Herlemus, 74 Wis. 21; Harvey v. Tyler, 2 Wall. 349. The whole inquiry is reduced to the fact of entering, and the intention to usurp possession. Probst v. Trustees, 129 U. S. 191, 192. Permissive possession is never a basis for the statute of limitations, and the rule is that evidence of adverse possession must be strictly construed, and every presumption is in favor of the true owner, and that the defendant entered under his conveyance, and that his possession is only co-estensive with his title, and restricted to the premises granted by it. Sydnor v. Palmer, 29 Wis. 252; Graeven v. Dieves, 68 Wis. 317; Fairfield v. [284] Barrette, 73 Wis. 468. The instructions of the circuit court on the question of adverse possession were as favorable to the defendant as the law would justify, and the jury were properly instructed that, “ whether the defendant’s possession was adverse depended upon the quo animo with which he entered upon the land; whether it was to hold it adversely, or whether it was merely tentative or provisional, depending upon where the true line should be afterwards ascertained to be.” Whether the entry of defendant, and his continued possession, were an ouster of the plaintiff and his grantor, or were merely in subordination to the plaintiff, or permissive, was a question of fact for the jury. Hacker v. Horlemus, 74 Wis. 25. It is to be remembered that the facts relied on by the defendant to make out an adverse possession are in a great degree equivocal, owing to the condition of the country and the entire want of any information in relation to the location of the center of section 10, and of the true line between the tracts in question; and there is no claim of any knowledge under the survey of the road by Eeddan, which was much less^than twenty years before this action was commenced; and there is an entire absence of testimony tending to show that the defendant’s possession of the strip was in fact adverse to Brown, the plaintiff’s grantor, who conveyed to the latter about fifteen years before the suit. There was testimony also- that the plaintiff and defendant had often talked of having a survey made, to ascertain where the line was; but this was denied by the defendant. Such survey was in fact made in 1889, and it appears to have proceeded upon unquestioned data, and the defendant acquiesced in it so far as to build ten rods of fence on the north part of the line at a point where his cultivation of the strip on plaintiff’s land was widest, and he suffered the plaintiff without objection, so far as appears, to build a new fence for forty rods on the south end of the line established by the survey. [285] But for the irritation and temper growing out of a petty suit about some grass out on this strip in the summer of 1890, it is possible, and perhaps probable, the surveyed line would have been acquiesced in as final. "While it is true that, if the defendant had acquired title to the strip in question by adverse possession prior to the survey in 1889, he would not have lost it by any of his subsequent parol declarations or acts, yet his acts in conforming to or acquiescing in that survey were competent evidence upon the intent with which he had occupied, and as tending to show that his possession had been provisional or permissive, and not adverse. The jury, in view of all the facts and circumstances, might well say that the old fence was not intended as a permanent boundary, but was built and maintained as a matter of convenience until the true line should be ascertained, and that the defendant’s possession of the strip in question had not been adverse for twenty years before the suit was commenced. While possession, occupation, and improvements for several years, with the knowledge of the true owner, may be prima facie evidence of adverse possession, yet they are not conclusive, and may be explained and rebutted by proof of facts showing that the possession was not in fact adverse (Worcester v. Lord, 56 Me. 265; Dow v. McKenney, 64 Me. 138; Lamb v. Coe, 15 Wend. 642); that it was permissive or provisional, and without the intention in fact of claiming or acquiring title. There is no room for contending that there was any express agreement between the parties whereby the old rail fence was built for and was to be a boundary between the estates. The most that can fairly be claimed is that what occurred in-view of the lapse of time tended to show as an inference that there was such agreement, and that the fence had become a settled boundary by acquiescence. This question, like that of adverse possession, was one of fact for the jury, and it was left to them under instructions [286] free from objection. The verdict of the jury is supported by the evidence. There is no preponderance of evidence against it, and the motion for a new trial was properly denied. 3. It is objected that the description of the land in the complaint is fatally uncertain and defective. The description that it is “all of the described forty lying west of the east line thereof, and east of a fence from two to five rods west of the true east line, and which fence runs north and south,” is sufficient. It is sufficient if, by the aid of a competent surveyor and persons knowing the monuments or objects mentioned as boundaries, the lands can be found; and this is in accordance with Orton v. Noonan, 18 Wis. 441. It follows that the judgment of the circuit court must be affirmed. By the Court.— The judgment of the circuit court is affirmed.