Illinois Steel Co. v. Budzisz

Siebeckee, J. An examination of the testimony satisfies ns that the court erred in directing a verdict for respondent. There is no serious controversy but that the parties occupied the premises for the respective periods mentioned, and made sales and transfers of such interests as they had. Appellant’s counsel contends that the use and possession of the premises as described and set forth by the witnesses furnishes good grounds for the jury to find that the entry was made under a claim of title exclusive of any other right, and that the possession was adverse^ under the statute. This contention of the appellant upon the evidence in the case is sustained by [583] tbe ruling in Allen v. Allen, 58 Wis. 202, 16 N. W. 610, decided as early as 1883, where tbe court beld: “This view of tbe effect to be given to evidence of long-continued occupation and use of real estate by a person in tbe actual possession thereof, and using tbe same as an owner would ordinarily use tbe same, as proof of adverse possession under tbe statute, is, we think, tbe proper view, and is supported by tbe authorities”- — citing a number of cases in different jurisdictions. Tn this view, tbe evidence presents a clear case for determination by tbe jury whether there was a continued, exclusive, open, and hostile use of tbe premises by appellant and bis grantors and predecessors. It is insisted in behalf of respondent that tbe undisputed evidence shows that an interruption occurred within tbe twenty years immediately preceding tbe commencement of this action. This contention is made upon the grounds that tbe evidence in no way tends to show that tbe occupancy of Mr. Herring in .1876 and of Mr. Kriehn in 1883 was in continuation of their immediate predecessors in possession. Counsel argues that tbe evidence material to these questions will support but one conclusion, namely, that there was a break in tbe possession and occupancy. This view appears to us a strained and unnatural construction of the evidence. Keeping in mind tbe subject-matter of these transfers^ and giving to tbe acts and conduct of tbe parties in dealing with such affairs reasonable and'ordinary intent and significance, it becomes manifest that a jury would be justified in finding that tbe use and occupancy of these premises was uninterrupted for a period of twenty years before tbe commencement of this action. It is furthermore asserted, however, that tbe verdict was properly directed, for tbe reason that tbe undisputed evidence is that Kriehn’s possession was not “under a claim of title exclusive of any other right.” This argument is based on tbe idea that be “made no claim whatever of title to or [584] ownership of tbe land, knew that it was not bis-, and never claimed or pretended that it was.” An inspection of the evidence germane to this question leads ns to the conclusion that the contention cannot prevail, under the doctrine of adverse possession established by the decisions. What is held to be a possession “under claim of title exclusive of any other right” has been discussed and determined by this court in different eases, from among which may be cited Allen v. Allen, 58 Wis. 202, 16 N. W. 610; Chicago & N. W. R. Co. v. Groh, 85 Wis. 641, 55 N. W. 714; Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171; Illinois S. Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534; Illinois S. Co. v. Bilot, 109 Wis. 418, 84 N. W. 855; Illinois S. Co. v. Jeka, ante, p. 122, 95 N. W. 97. As stated in some of these decisions, there is a conflict of authority upon the question suggested, yet it is not an open one in this state. In Lampman v. Van Alstyne, supra, the court stated: “This [conflict] has grown out of the gradual development of the law from an early period, when it was quite generally held that only occupants in good faith could acquire title by adverse possession, to the rule obviously prescribed by statute, but reluctantly adopted by the courts, doing entirely away with all necessity for judicial investigation into the hidden motives of the entry or possession and all questions of good faith inspecting the same, and substituting instead the rule that open, exclusive, continuous, uninterrupted, and hostile possession for the statutory period, whether in good faith respecting boundaries or title, or whether applied to actual possession or actual possession of part accompanied by constructive possession of the balance included in a written instrument upon which the claim of title is based, does the work.” This doctrine has been fully recognized in .other jurisdictions, and is explicitly set forth in the case of Bryan v. Atwater, 5 Day, 181: “What, in point of law, is an adverse possession, without reference to any presumption to make out such possession? [585] It is a possession not under tbe legal proprietor, but entered into without bis consent, either directly or indirectly given. It is a possession by which he is disseised and ousted of the lands so possessed. To make a disseisin, it is not necessary that the disseisor should claim title to the lands taken by him. It is not necessary that he should deny or disclaim the title of the legal proprietor. No; it is necessary only that he should enter into and take the possession of the lands as if they were his own — to take the rents and profits, and so manage with the property as the legal proprietor would manage with it. If property be so taken and so used by any one, though he claims no title, but avows himself to be a wrong■doer, yet by such act the legal proprietor is disseised. . . . In truth, to determine whether or not the possession be adverse, it is only necessary to find out whether it can be considered a's the constructive possession of the legal proprietor.” We think, under the evidence, these issues should be submitted to and decided by a jury. The judgment must be reversed, and a new trial ordered. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for. a new trial.