Reitler v. Lindstrom

Siebeckbk, J. It is urged that the conclusion of the trial court, to the effect that Newburgh had possession of the disputed strip of land from the year 1881, is not supported by the evidence. We do not find this claim sustained by the evidence. The testimony of Newburgh is explicitly to the point [565] tbat be was in actual possession of tbe strip and the adjoining land now owned by plaintiff at the time and after he conveyed the land now owned by defendants to Elizabeth Sheard, and that such occupancy was an open and uninterrupted one from the time of such transfer to Sheard and the building of the fence by them on the division line jointly established by them. The testimony tending to show the existence of such a division fence and the location, with reference thereto, of the barn and other structures by Elizabeth Sheard, and the use of the lands by the respective parties up to such boundary, conflicts with the claim that either party claimed to own beyond this division line. The testimony, however, strongly supports the court’s finding that Newburgh, and all persons succeeding him as owners of the premises claimed by the plaintiff, maintained an open, notorious, and uninterrupted adverse possession thereof from 1881 until defendants’ interference in 1902. Such occupation must be held to have been adverse as against everybody, and at the expiration of twenty years vested a fee in the plaintiff, who was then in possession as successor to the interest originally held by Newburgh. The adverse possession thus shown meets the calls of the statute on adverse possession. The evidence adduced shows that the lands in connection with which the strip was used and occupied were inclosed and occupied by Newburgh and his successors as an entirety from the time the division fence was located and constructed. This occupancy was of a character comporting with the ordinary and usual occupancy and use of such lands, and in its character and nature shows that it was an open, exclusive, continuous, and hostile one for the statutory period, and that it vested the title in the plaintiff. Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171; 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; Illinois S. Co. v. Budzisz, 119 Wis. 580, 97 N. W. 166. We must hold that plaintiff ac [566] quired title to the disputed strip by adverse possession. This conclusion, fully disposes of every claim defendants can make to the strip of land in question. It also appears that the description in the tax deed from Rock county to Charles Newburgh in 1885 covers the disputed strip with sufficient certainty, under the facts and circumstances shown, to include it .within the claim of title and actual occupancy under such tax deed. Erom this the conclusion must follow that plaintiff, under claim of title founded upon a written instrument, acquired title to the strip pursuant to secs. 4211, 4212, Stats. 1898. We take it that the judgment confirms the title so acquired by plaintiff and that the division line between plaintiff’s and defendants’ premises is established and located along the line of the fence erected by Newburgh and Elizabeth Sheard in 1881. Discussion of the other questions argued by counsel is not required, since the conclusions on the questions indicated require that the judgment appealed from be affirmed. By the Court. — Judgment affirmed.