Hemmy v. Dunn

Cassoday, O. J. There is no claim or pretense that the plaintiff’s intestate ever acquired any right, title, or interest in the land in question by virtue of or “founded upon any written instrument or any judgment or decree” of any court.On the contrary, the claim is that he acquired such title by “an actual, continued occupation of” such “premises under a claim of title, exclusive of any other right,” and adversely to any other claimant. Sec. 4213, Stats. 1898. -That statute limits such right of adverse possession to “the premises so actually occupied, and no other.” Id. And then, after defining such adverse possession (sec. 4214, Stats. 1898), the [278] statute declares that “an adverse possession of . . . twenty years under tbe two last preceding sections shall constitute a bar to an action for tbe recovery of such real estate so held adversely or of tbe possession thereof.” Sec. 4215. What constitutes such adverse possession has frequently and recently been declared by this court. Illinois S. Co. v. Bilot, 109 Wis. 418, 84 N. W. 855, 85 N. W. 402; Batz v. Woerpel, 113 Wis. 442, 89 N. W. 516; Gilman v. Brown, 115 Wis. 1, 91 N. W. 227; Hatch v. Lusignan, 117 Wis. 428, 94 N. W. 332; Illinois S. Co. v. Jeka, 123 Wis. 419, 101 N. W. 399. Tbe forty acres of land in question were without buildings. With tbe exception of three or four acres it was low land — useful for bay and pasture purposes. On tbe opposite side of tbe highway and diagonally across there were fifty acres of land owned by Henry, and which he acquired by deed from his mother in 1880, and his buildings were all on the fifty acres. There is evidence tending to prove that Henry Dunn rented the forty acres and the fifty acres together to the witness Hemling, who took possession under his lease October 1, 1881, and continued such possession under such lease five years, or until October 1, 1886. But the evidence of such possession after October 1, 1886, is exceedingly weak and unsatisfactory. It consisted in seeing Henry, several years prior to the trial, fix the fences clear around the pasture, and cutting hay and digging a ditch through the pasture on the forty. It also consisted in showing that from time to time prior to October 1, 1889, the forty was worked by a "man by the name of Eerlde, and then by a man by the name of Hahn, supposed to be tenants of Henry, and that Henry paid the taxes. We assume, however, for the purposes of this appeal, that Henry was in such adverse possession from October 1, 1881, to October 1, 1899, a period of eighteen years. The plaintiffs witness Hafenstein testified to the effect that the appellant William Dunn worked the forty for two years before Henry died, and had cattle thereon each of those two [279] seasons. The plaintiff’s witness Youker, among other things, testified to the effeet that the summer before Henry died, and for two years before he died, the-appellant ’William Dunn, or his son, worked the forty, and that he thought he rented it of Henry, but did not profess to have any knowledge as to that. The plaintiff’s witness Davis, an attorney at law at Watertown, testified to the effect that some three months prior to Henry’s death, and about August, 1901, he drew a lease from Henry to one Gruenwald of the ninety acres of land, including the forty in question, but that Gruenwald was unable to get possession, and brought suit against Henry for breach of covenants in the lease for renting land for which he had no title. The defendant William Dunn and his two sons testified to the effect that in the fall of 1899 one of the sons rented the fifty-acre piece of his uncle Henry; that Henry then admitted that he did not own the forty acres in question; that William Dunn was in the exclusive possession of that forty, and that he and his sons worked and occupied the same during the seasons of 1900 and 1901 without paying any rent and without any lease or agreement to pay rent to Henry or any one; and that William Dunn paid the taxes on that forty during those two years. It is, moreover, conceded that William Dunn was in possession at the time Henry died, and has been ever since. We must hold that the findings of the court to the effect that Henry Dunn was in the exclusive possession of the forty acres of land in question for twenty years immediately preceding his death are against the clear preponderance of the evidence. On the contrary it is practically undisputed that, during the two seasons immediately prior to his death, William Dunn was in such possession, and he and his son worked and occupied that forty. The assumption that William Dunn was in such possession and occupancy under a lease from Henry Dunn is without foundation. The twenty years from the time it is claimed by the plaintiff that Henry Dunn first entered into such possession— [280] October 1, 1881 — did not expire until October 1, 1901, within tbe two months immediately preceding his death; and yet it sufficiently appears from the plaintiff’s own witnesses that long prior to the two months the running of the statutes of limitation had for two seasons been, interrupted. By the Gourt. — The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the complaint