Clithero v. Fenner

SiebeckeR, J. It is contended that the evidence in this case does not sustain the findings of the lower court, as given in the foregoing statement of facts. The court found that respondent’s predecessor did occupy the disputed tract. The testimony is direct and positive, showing that respondent’s father used the tract in connection with the farm he owned, described as lot 4, and other lands, from the year 1857 to the time he sold it in 1886 and 1887. This use consisted in pasturing the fields up to the creek, and cutting timber and hay off it at different seasons, throughout these years. He also inclosed it with a fence on all sides, except along the creek, where the bank and water formed a natural barrier, keeping his stock from straying off the field, and keeping the stock of others from entering upon it. The use thus made of the tract in dispute, in connection with the adjoining field, was in fact an open and hostile occupancy and possession as against the true owner. This use and occupancy is furthermore shown to have been the ordinary and customary use to which the premises, in their condition and circumstances, were adapted. Such use and occupancy clearly indicated the extent and boundary of such adverse possession. There is ample competent evidence in the case to warrant the court in so finding. This court cannot, therefore, interfere with the conclusions of the trial court, holding that the acts of ownership by respondent and his father showed a claim of right to the property, and were in fact an actual, continuous, and' exclusive occupancy, and had ripened into a title by adverse possession. The nature of the occupancy constituting an adverse possession under the statutes is fully discussed in Illinois S. Co. v. Bilot, 109 Wis. 418, 84 N. W. 855, 85 N. W. 402, approving the case of Clark v. Potter, 32 Ohio St. 64, which declares: “As the character of the possession depends on the nature and situation of the property and the use to which it can be applied or to which the owner may choose to apply it, it is evident that resort must be had to the usual and ordinary [361] conduct of owners of such land to determine if it is sufficient. If the possession comports with ordinary management of similar lands hy their owners, it furnishes sufficient evidence of adverse possession.” Allen v. Allen, 58 Wis. 202, 16 N. W. 610; 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. Jeka, 119 Wis. 122, 95 N. W. 97. It is asserted that respondent cannot maintain this action because he acquired no title to the strip in question under the deed. It is true, the tract is not specifically described or covered by the description set out in the deed of this farm from respondent’s father. As above stated, the evidence supports the conclusion that the father was in possession of the disputed part, which adjoins his land, and that he treated it as a part of the farm which he conveyed to respondent, arid that he transferred possession of the whole. It is also apparent from the evidence that respondent toot possession of the whole, by occupying it, inclosing it, and using the part specified in the deed and this adjoining strip as an entirety. In the light of these circumstances, the presumption that the conveyance must be limited to the calls of the deed is overcome by the established facts that respondent obtained possession of' the tract outside of the description as a part of the premises purchased under the deed. Such a transfer establishes a successive relationship to the tract in controversy, making the parties to the transfer privies in possession; thus conferring all the legal rights of the father, as vendor, on respondent, as his vendee. Illinois S. Co. v. Bilot, supra, and cases cited; Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413. It is contended that there was a break in the continuity and rights under the adverse possession, because respondent did not personally occupy the premised after his purchase until 1891. The possession of the premises from the time of the execution of the deeds in 1886 and 1887, as disclosed [362] by the evidence, was either a continuance of the father’s-possession, or the father and others were in possession for respondent as owner. In either view, the possession was-adverse to the true owner, and must inure to the benefit of respondent. Nor did the transaction between the parties in reference to the disputed boundary show that respondent made no claim to the tract in dispute. He persisted in his claim of ownership of the tract, though they negotiated for d settlement of the dispute. That the- trial court so found,, follows from the judgment it awarded. Negotiations to purchase the strip from appellant, to settle the dispute, do not in themselves absolutely establish a relinquishment of the claim of the rights acquired by adverse possession. Meyer v. Hope, 101 Wis. 123, 17 N. W. 720. We cannot disturb these findings as against the clear preponderance of the evidence. These conclusions upon the material issues entitled respondent to judgment upon the-facts as found by the trial court. Several exceptions to evidence are argued upon the ground that the proof received over objection was incompetent. The evidence objected to tended -to show that respondent’s father at different times made declarations to various parties indicating that he was the owner of the land in dispute. At the conclusion of the testimony the court struck out parts of this-evidence, but the record does not clearly show what parts wore so stricken out. Since the court’s findings of facta are sustained by other competent evidence, no prejudicial error was committed by these rulings upon the evidence. It is urged that the court erred in refusing to grant a new trial upon the ground of newly discovered evidence. An inspection of the affidavits setting out what evidence appellant claims to have discovered since the trial shows that it is cumulative and impeaching testimony bearing upon the-issues actually litigated. Nor does it appear that appellant used due diligence to secure what he now submits as newdy [363] discovered evidence. Such a showing is necessary to entitle him to a new trial upon this ground. This court has repeatedly announced its adherence to the rule that the granting or refusal of a new trial upon newly discovered cumulative or impeaching evidence rests largely in the discretion of the trial court. There is nothing showing any abuse of discretion in denying the motion. McLimans v. Lancaster, 57 Wis. 297, 16 N. W. 194; Schillinger v. Verona, 85 Wis. 589, 55 N. W. 1040; Ketchum v. Breed, 66 Wis. 85, 26 N. W. 271; Hooker v. C., M. & St. P. R. Co. 76 Wis. 542, 44 N. W. 1085; Smith v. Champagne, 72 Wis. 480, 40 N. W. 398; Knopke v. Germantown F. M. Ins. Co. 99 Wis. 289, 74 N. W. 795. The questions we have considered are decisive of the rights of the parties under the issues of the ease, and the judgment must stand. By the Court. — Judgment affirmed.