Closuit v. John Arpin Lumber Co.

Dodge, J. The conclusion reached by the court upon certain of the issues of fact raised by the pleadings is so conclusive of the action as to render unnecessary of consideration several of the other questions, whether of fact or law. The answer alleges that the defendant and its grantors have been in continuous, open possession under claim of title exclusive of any other right, and now own the premises by virtue of sec. 4213, Stats. 1898; also that the action was not commenced within the time limited by sec. 4207, Stats. 1898. By this last allegation is presented the issue of fact whether plaintiffs or their predecessors in title have been seised or possessed of the land at any time within twenty years from the commencement of the action. There is no finding by the trial court on either of these issues. The findings merely affirm the issues joined by the general denial of the allegations of the complaint without declaring specifically upon the affirmative defenses presented by the answer. On such issues nothing is found, except that all the material allegations of the answer are unproven and untrue. This does not rise to the dignity of a finding such as concludes this court on appeal in presence of evidence so in conflict as to present but a mere preponderance either way. Milwaukee Nat. Bank v. Gallun, 116 Wis. 74, 92 N. W. 567; Burke v. Sidra Bay Co. 116 Wis. 137, 141, 92 N. W. 568; Farmer v. St. Croix P. Co. 117 Wis. 76, 93 N. W. 830; Chippewa B. Co. v. Durand, 122 Wis. 85, 92, 99 N. W. 603; McKenzie v. Haines, 123 Wis. [262] 557, 563, 102 N. W. 33. It but leaves the court in the predicament described in Brown v. Griswold, 109 Wis. 275, 280, 85 N. W. 363, with a choice between three courses of, action, viz.: to affirm the judgment if clearly supported by preponderance of the evidence; to reverse if not so supported, ordering judgment in accordance with what appears to this court to be the preponderance; or, if 'that course seems to present peril of injustice, to remand for further trial and findings. We have examined the evidence carefully and discover no substantial conflict in the testimony of witnesses to specific facts or circumstances, though the inferences to be drawn therefrom may present room for difference of opinion. There is no question of the more than twenty years’ inclosure and physical occupation for a pasture by defendant and a series of grantors in conveyances describing a tract of land not including that in dispute, but lying immediately south' of and inclosed and occupied with it. Neither is there any doubt that from each such grantor to his grantee was delivered the actual physical possession without interval, break, or interruption; thus creating privity of possessions and justifying the tacking of each to its predecessor. Wollman v. Ruehle, 104 Wis. 603, 80 N. W. 919; Illinois S. Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534; Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027. Such occupancy has presented all the characteristics usual in occupation by the owner of such land,' such as pasturing cattle upon it, renting it to others for like purposes, and erecting, maintaining, and rebuilding fences marking the limits of the possession so enjoyed. True, such acts are presumed to have been in subordination to the true legal title until they have continued for twenty years (sec. 4210, Stats. 1898); but when they have continued for that period a contrary presumption arises to the effect that at all times they have been adverse to the true title and founded upon some-claim of exclusive title in the occupant. The burden thereupon is cast upon any one disputing the adverseness of the [263] possession to overcome suck presumption by affirmative proof. Meyer v. Hope, 101 Wis. 123, 77 N. W. 720; Wollman v. Ruehle, supra. That is claimed to bave Treen done in this case by the testimony of one of the plaintiffs that in 1885, when he was fifteen years old, he heard a conversation between his father, the now deceased F. J. M. Closuit, and John Arpin, who then occupied the disputed premises. Closuit, standing near the easterly end of the fence bounding Arpin’s occupancy on the north, said: “John, this fence is on my land.” Arpin answered he knew it, but when they got time to have it surveyed they would place the fence on the line. The conversation was, at most, casual, and not part of any negotiations or transaction. It is ambiguous as to whether it referred to some particular spot or portion of the fence. It by no means clearly indicates that Closuit was asserting or Arpin conceding the former’s right to the two acres or more occupied by Arpin and not included by his deed. It is, at best, open to such uncertainty as to exact terms, resulting from the twenty years’ lapse of time and the youth of the listener. Against its efficacy to break the otherwise apparently adverse occupancy is the fact that the parties to the conversation co-operated in repairing the fence some two years later, and for the ensuing several years of their lives maintained it as the boundary between their respective possessions. These considerations have led the court to the conclusion that the evidence does not establish either a surrender or interruption, of John Arpin’s possession, nor any seisin or possession by the plaintiffs’ ancestor, within the twenty years before commencing this action, which, therefore, must be held barred by sec. 4207, Stats. 1898, irrespective of other defenses. There is nothing to indicate that other or different evidence would be produced if opportunity were given, nor' other reason to deter us from ordering the judgment necessarily resulting from the views expressed. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for defendant.