Zander v. Valentine Blatz Brewing Co.

WiNslow, J. When this case was here before, the merits were not decided. 89 Wis. 164. Now, however, the question is fairly presented whether ejectrhent will lie. Both parties cite and rely upon McCourt v. Eckstein, 22 Wis. 157. In that case it appeared that some of the stones of defendant’s foundation wall projected eight inches over upon plaintiff’s land, and that the plaintiff erected his own building eight inches away from his line, thus leaving the eight-inch strip unoccupied. It was held, in effect, that the plaintiff might treat the encroachment as a disseisin, at his election, and if he had. so treated it, he might maintain ejectment; and it seems further to have been held that there was enough evidence in that case to carry to the jury the question whether the plaintiff had elected to treat the defendant’s act as a disseisin. In the present case there is, however, no [164] such evidence. The testimony shows, without dispute, that the plaintiff is now, and always has been, in possession of his full lot. His building extends to the north line of his lot, and the only difficulty is that it rests upon a few inches of wall below the surface of the ground, which was built by the defendant without authority. This act of the defendant in intruding his foundation wall under the plaintiff’s building was (if done without permission) undoubtedly a trespass. If the plaintiff had’ chosen, he might, under the rule of McCourt v. Eckstein, have treated it as a disseisin, and could have then maintained ejectment. But he has not treated it as a disseisin. On the contrary, by allowing his building to remain upon the foundation and by occupying that building up to his line continuously, he has undoubtedly elected to treat the defendant’s act in building the wall as a mere trespass. The plaintiff has had the full and free possession and enjoyment of his entire lot ever since the wall was built. Ejectment cannot be maintained by one who is in the undisturbed possession of real estate. It is a remedy provided for one who is out of possession. This is elementary law. On the question what disseisin will support ejectment, see note to Harrington v. Port Huron (86 Mich. 46), in 13 L. R. A. 664.— Rep. By the Oourt.— Judgment affirmed.