Kurz v. Miller

PiNNey, J. 1. Where tbe true line was between tbe respective forty-acre tracts of tbe plaintiff and defendant was properly submitted as a question of fact for tbe jury. Tbe evidence was quite convincing that tbe line established by tbe surveys, except, perhaps, that said to have been made by Palmer, was south of tbe place of tbe alleged trespass, and between tbe two ditches. The case was made to turn largely upon tbe view tbe jury might take of tbe facts in re [432] spect to two questions: (1) Whether the defendant’s grantor, Ivuderling, and the plaintiff located and dug the ditch in 1871, and agreed upon it or considered it as. the true line, and whether it had ever since been recognized and acquiesced in as the true line by both Kuderling and the defendant and for so long a period prior to the time of the alleged trespass that the defendant ought to be held concluded and estopped from disputing it. (2) Assuming the contention of the defendant as to the true location of the line to be correct, and that it ran south of the willows, had the plaintiff acquired title to the strip of land in dispute, and on which the willows grew, by continuous adverse possession of it for a period of twenty years before the alleged trespass? It is important to bear'in mind that at the time the defendant purchased his forty, shown by his deed to have been April 11, 1874, the appearances upon the ground were, to say the least, very equivocal. The evidence tends to show that there were two ditches about ten feet apart, and between them and about the same distance south of the willows there was a slight fence to turn cattle, and there was the row of willows growing,— a not usual or perhaps significant matter in that marshy locality. There is nothing to show that the defendant was ever informed who had planted them, or for what purpose, and the evidence was that the defendant never had any notice that the north ditch had been agreed on or acquiesced in as the true line by his grantor. He denies having built and maintained a fence on the north side of the north ditch on the western part of the line at the instance or suggestion of the plaintiff as a line fence, or that he had maintained it as such, and claimed that it was a temporary convenience and after several years had been removed. There was, it appears, no actual cultivation or' use by the plaintiff of the locus in quo or the land between the two ditches. The plaintiff had put out the willows as a wind [433] break, and it does not appear that anything had transpired amounting to a claim of title, adverse or otherwise, on the part of either party, to this strip of land, or that the question of the true location of the line between them had ever been the subject of claim or consideration until about the time of the alleged trespass. Upon the most favorable view *of the evidence for the plaintiff it is difficult to say that the question whether there had been an adverse possession of the locus in quo as against the defendant since his purchase ought to have been submitted to the jury. The presumption, in the absence of proof to the contrary, is that the possession of each of these adjoining owners was in accordance and coextensive with his legal title. One in possession of land to which he has no claim of title is presumed to be in possession in amity with and in subservience to the legal title. Evidence of adverse possession is always to be construed strictly, and every presumption is to be made in favor of the true owner. The burden of establishing it is on him who asserts it, and it is not to be made out by inference or presumption, but by clear and positive proof. Sydnor v. Palmer, 29 Wis. 252; Wilson v. Henry, 35 Wis. 245; Hacker v. Horlemus, 74 Wis. 21; Dhein v. Beuscher, 83 Wis. 325; Ayers v. Reidel, 84 Wis. 283; Graeven v. Dieves, 68 Wis. 317. What constitutes adverse possession is a question of law for the court, and whether the necessary facts exist to establish it is a question .of fact for the jury. In order to constitute adverse possession against the title of the true owner, •the adverse claim must be sufficiently open and obvious, both as to the fact of possession and its really adverse character, to apprise the true owner, if in charge of the property and in the exercise of reasonable diligence, of the fact .and of an intention to usurp possession of that which in law is his own. Secret or disconnected acts of an equivocal •character, occurring at long intervals, will not suffice. The’ [434] possession, must be actual, open, continuous, and under claim of right as against the true owner. The court instructed the jury that “the fact that the; plaintiff planted the willows up to the south of the ditch [the north one], protected them by a fence from being destroyed by the cattle, and always claimed these willows as. his own, and the right to cut them, and did cut some of them, considering all the circumstances of the ease a/nd the-natmre of the land at that place, was sufficient to constitute-adverse possession of the land up to the ditch dug by the plaintiff and Kuderling.” There is no evidence to show that any willows were cut or claimed by the plaintiff before-1891, or that he made any open or specific claim of title to the strip of land in question, or that the line had become the-subject of consideration between the parties until that time,, as the court had already informed the jury; and yet they were informed that the planting of the willows by the; plaintiff, and that he protected them by the fehce somewhat to the south of them, and cutting and claiming them in 1891, made out adverse possession under all the ewcumstances, and it was left for the jury to say whether the facts referred to were proved. The circumstances were very much in dispute, and the court could not rightfuEy assume to say what they were, to aid the defective and erroneous character of' the instruction. The circumstances proper to be considered, the law required, should be found by the jury. They could not know, nor can it now be affirmed, what circumstances the court thought material or had been proved. The erroneous and injurious character of this instruction is apparent when it is remembered that there was not only no proof' of actual cultivation or continued possession of any kind as .to the strip of land in question, but the proof by the plaintiff’s sons was that his occupation of his forty had only been up to the southern ditch, and that no one had occupied and used the space between the ditches for the past twenty [435] years. For this erroneous instruction the judgment appealed from must be reversed, and this renders it unnecessary tó consider the instructions as to the other branch of the case. By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.