Batz v. Woerpel

Cassoday, C. J. Tbe finding to tte effect that tlie barbwire fence was constructed by the plaintiff in the summer of 1893 is not sustained by the evidence. On the contrary, the plaintiff’s son-in-law, Mr. Ruth, testified to the effect that he assisted in constructing that barb-wire fence in 1891, and that from 1888 to that time his garden came right up to where the barb-wire was then located; that he did not know that there wás any dispute for a long while, but had known it since August, 1900; that there was no fence to hinder the defendant from going in and out of his side door on the north of his house until he put the garden there. The defendant testified to the effect that Mr. Ruth had no garden down in the corner near the house before he built the barb-wire fence in 1891 ; that Mr. Ruth made no use of the strip south of the posts; that some part of it was idle at the time of the trial; that before the barb-wire fence was constructed the defendant’s walk leading to the side door on the north side of his house was not interfered with; that he used sis or seven feet of space before the fence was put there. The defendant’s testimony is corroborated in some respects. Mr. Ruth concedes that when he went upon the premises there were a few posts and boards remaining of the old fence, and that the same were in line with the center of the tree, although he never measured it. After careful consideration, we are constrained to hold that the disputed facts so found by the trial court are sustained by the evidence, except as to the time of constructing the barbwire fence. That, however, is immaterial, since it appears from the undisputed evidence that the fence was not placed there until more than twenty years after the defendant’s grantors, Sterner & Lampson, constructed the old fence on the line staked out by the plaintiff’s grantor. It appears from such findings and the evidence that from the time of constructing that old fence, in August, 1870, down to the time of constructing the barb-wire fence, in 1891, the defendant [448] and bis several grantors were in tbe possession and occupancy of all tbe land sontb of tbe line of that old fence. In fact, sucb possession and occupancy do not appear to bave been disputed until about tbe time of tbe construction of tbe barbwire fence. Sucb possession and occupancy during tbe whole twenty years were, from the very situation of tbe premises and tbe residence of tbe defendant, open, notorious, and continuous. True, that fence became dilapidated to sucb an extent that tbe defendant removed a part of it in 1886, but be-left some of tbe old posts and some boards standing, as an indication of wbat tbe defendant tben regarded tbe north line of bis lot. Sucb removal of a part of tbe old fence was no evidence of an intention to abandon possession of any of tbe land south of that fence, but, rather, indicates that be regarded himself as having some interest in and control over that fence. Tbe question recurs whether sucb possession and occupancy of all tbe land south of tbe line of that old fence by tbe defendant and bis grantors for twenty years constituted adverse possession, within tbe meaning of tbe statute which declares that “when there has been an actual continued occupation of any premises under a claim of title, exclusive of any other right, but not founded upon any written instrument or any judgment or decree, tbe premises so actually occupied, and no other, shall be deemed to be held adversely.’7 Sec. 4213,, Stats. 1898. Tbe statute further declares that, “for tbe purpose of constituting adverse possession” under that section, “land shall be deemed to bave been possessed and occupied in tbe following cases only: (1) When it has been protected by a substantial inclosure. (2) When it has been usually cultivated or improved.” Sec. 4214, Stats. 1898. Tbe contention is that, after tbe old fence became dilapidated and mostly removed, tbe defendant’s possession and occupancy of tbe land south of tbe line of that fence were not “protected by a substantial inclosure,” within tbe meaning of that statute, nor [449] “usually cultivated or improved,” within the meaning of that statute. Such contention would have much force if the defendant relied entirely upon such inclosure or such cultivation or improvement to establish his possession and occupancy. But he does not. On the contrary, he relies upon open, notorious, continuous, use and occupancy during the whole of the twenty years. As indicated, the defendant’s house extended eighteen inches north of the north line of the land described in his deed. His bach door opened upon the north side of his house, and his walh from that door necessarily expended over the land now in dispute in an easterly direction to the' street. Erom the very nature of things, that walh was in continuous use of the occupants of the house during the whole of the twenty years. It was exclusively for the use of persons going to and from the house. The balance of the land now in dispute constituted a part of the defendant’s front door yard. Its northern limit was naturally suggested by the remains of the old fence which had existed for sixteen years. The inclosure, cultivation, and improvement so mentioned in the statute are, at most, evidence of such possession and occupancy. Undoubtedly there can be actual occupancy and possession without such inclosure, cultivation, or improvement. A walh or a driveway is a good illustration. Certainly such open, notorious, and continuous use for twenty years without objection is prima facie evidence of adverse possession. Willems v. Nicolai, 99 Wis. 178; Wollman v. Ruehle, 100 Wis. 31; S. C. 104 Wis. 603; Meyer v. Nope, 101 Wis. 123; Bishop v. Bleyer, 105 Wis. 330; Roberts v. Von Briesen, 107 Wis. 486. After twenty years of peaceable and uninterrupted adverse possession, a grant will be presumed. Nelson v. Ja cobs, 99 Wis. 559. The construction of the two sections of the statute mentioned has recently been considered by this court. Illinois S. Co. v. Bilot, 109 Wis. 418, 440-447. It is unnecessary to add to the authorities there cited and the [450] reasons there given by Mr. Justice Maeshali.. Among other things, it is there said: “No particular hind of inclosure is requisite. It may be artificial in part and natural in part. Nor is any particular kind of improvement required, so long as it satisfies what is usual under the circumstances, and indicates clearly the boundaries of the adverse occupancy. . . . The boundaries may be artificial in part and natural in part, if the circumstances are such as to clearly indicate that the inclosure, partly artificial and partly natural, marks the boundaries of the adverse occupancy. . . . The term 'improvement in the usual way,’ as used in the statute, means put to the exclusive use of the occupant, as the true owner might in the usual course of events.' That use may be, as it often is, one that adds nothing to the value of the premises. It may even destroy the natural and actual value, — as, for instance, a highway may be acquired by twenty years’ uninterrupted adverse use. . . . The governing questions of law, regardless of the character of the premises, are the same in every case; but the question of fact may be presented by evidence in such a great variety of ways, according to the circumstances of each particular case, that usually there is room for conflicting inferences, requiring the verdict of a jury as to where the truth lies.” He then quotes approvingly the language of the supreme court of the United States as follows: “To constitute an adverse possession, there need not be a fence, building, or other improvement; and it suffices for the purpose that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by statute. So much depends upon the nature and situation of the property, the uses to which it can be applied or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule in all cases. But it may safely be said that where acts of ownership have been done upon the land, which from their nature indicate a notorious claim of property in it, and are continued sufficiently long, with the knowledge of an adverse claimant, without interruption or an adverse entry by him, such acts are evidence of an ouster of a former owner, and an actual adverse possession [451] against him, provided tbe jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held.” We must hold that the plaintiff’s claim of title to the locus in quo was barred by the statute of limitations before the commencement of this action. This makes it unnecessary to consider the other question discussed by counsel. By the Gowrt. — The judgment of the circuit court is affirmed.