Kreckeberg v. Leslie

Dodge, J. 1. The judgment in this case must be reversed for the reason that a portion of the land, of which paper title, is conceded to be in plaintiffs, and to which defendant sets up adverse claim in his answer, is not clearly shown to have been used either by the public or by the defendant adversely for any definite period of time, if at all. The defendant claims that all of parcels “ one ” and “ two ” lying within thirty-three feet of the north and south quarter-section line has been occupied, used, and traveled adversely to plaintiffs for more than twenty years. His proof shows, or tends to show, travel over a strip of land bounded on the west by a fence approximately two rods west of the quarter line, and on the east by an old rail fence which had constituted the western boundary of the occupation by plaintiff and his grantors for many years. There is no evidence whatever of travel to the eastward of the last-mentioned fence. T-here is evidence to show that such latter fence was nowhere more than one rod east of the quarter-section line. The plaintiffs say its distance varied from one rod at the north end to eight or ten feet at the south end, and there is other evidence to the same effect. Thus at least one rod of the thirty-three feet claimed by defendant lies to the eastward of such fence, and without the limits of the traveled strip. There is no sufficient proof to overcome or devest plaintiffs’ legal paper title thereto, and, defendant’s occupation and claim thereof being admitted, plaintiffs should at least have had their right thereto submitted to the jury, and the direction 465 of verdict was erroneous. This, of course, necessitates re-' versal of the whole judgment, and remission for a new trial, and renders unnecessary consideration of the sufficiency of the evidence on the last trial to sustain defendant’s claims to other portions of the land. 2. Error is assigned upon refusal to permit plaintiffs to show certain declarations made by the defendant’s ancestor characterizing his use or occupancy of some of the property in dispute. It is not necessary to decide whether the questions disallowedewere proper. . They were somewhat vague. It will suffice to point out that declarations of one in possession, of land, characterizing or defining his possession and claim thereto, are admissible in evidence against those claiming .under or in privity with him. 1 Jones, Ev. § 240 et seq.; 2 Jones, Ev. § 355 et seq.; Lamoreux v. Huntley, 68 Wis. 24, 33. By the Court.— Judgment reversed, and cause .remanded for new trial.