Mielke v. Dodge

XeRWIn, J. As appears from the findings, the court below found all the facts necessary to establish the defendant’s-title by adverse possession, and found that the fence had always been maintained on the line where originally placed [391] for more than twenty years, and that defendant by herself and immediate grantors had always maintained and claimed that snch fence marked the true boundary, and that such possession by defendant has been open, adverse, exclusive, notorious, hostile, continuous, and uninterrupted for more than twenty years upon claim of ownership up to the fence line, and that the defendant did not occupy the strip of land in question by permission of any owner of record title,, but held the same under claim of ownership, claiming that said fence was the true boundary and marked the true division of the premises occupied and owned by her and her1 prior grantors. The appellant attacks the findings of fact and claims they are unsupported by the evidence. The proof establishes "without substantial dispute that the fence was built where located twenty-five years or more before the commencement of the action, and afterwards rebuilt twenty-two years before the commencement of the action upon the same line as the old fence, and ever since has been maintained as rebuilt; but it is claimed on the part of the appellant that during a portion of the period the use by the defendant’s grantors was permissive. This is sought to be established mainly by the evidence of Christenson and Earnsworth. It is claimed by counsel for respondent that this evidence was not competent; but we shall not stop to consider the objection or decide whether competent or not, because we are clear that the testimony was wholly insufficient, even if competent, to establish the claim. There is evidence that Farns-worth owned the property from 1880 to 1885 or a portion of that time, and that in October, 1885, he deeded it to Chris-tenson. _ There is evidence, also, that Christenson was in pos'session before 1885. Farnsworth’s testimony with reference to permissive use related to a period shortly after he purchased, and was to the effect that it was agreed that when the new fence was built it should be put on the true line. This testimony, therefore, related to a time prior to the rebuilding of the fence, because the evidence shows that the fence was [392] not rebuilt until after Christenson was in' possession and about twenty-two' years before tbe trial of the action. Chris-tenson’s testimony is very meager and simply related to some talk between himself and the adjacent owner, Dodge, to the effect that the adjoining property owner endeavored to’buy the strip in question, and also some talk to the effect that the fence should remain where it was for the present rather than sell the land. But there is nothing to show that this conversation was after the rebuilding of the fence, and, taking all the testimony together, the inference is at least strong that this talk was before the fence was rebuilt. Therefore we thiuk it clear that, in order to make this evidence available as tending to establish permissive use, it must be shown that the conversation took place after the fence was rebuilt, which was not done. So we come to the question of whether or not the rebuilding of the fence amounted to an eviction sufficient to ripen into title by adverse possession, even though there had been permissive use prior to that time; and we think it did. Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. There being no evidence of any permissive use after the construction of the new fence upon the identical line of the old fence, and the same having been maintained by the different owners for a period of more than twenty years before the commencement of the action, the finding to the effect that there was no permissive use at any time during a period of twenty years immediately before the commencement of the action is fully supported by the evidence and the decisions of this court. Meyer v. Hope, supra; Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413. The erection of a new fence was a distinct hostile entry upon the property, and when maintained for tlio requisite time operated to overcome the presumption previously existing in favor of the true owner; and it was incumbent upon the true owner to establish permissive use after such entry. Bishop v. Bleyer, supra; Closuit v. John Arpin L. Co. 130 Wis. 258, 110 N. W. 222. [393] It is further insisted that the continuity of possession was •broten so as to divest the defendant of any claim which she would have, had the continuity not been broken. This 'Claim is based upon the fact that the strip in controversy is not included in any deed and that defendant claims title through her husband by a conveyance executed in 1892, before our statute giving right to convey lands directly from husband to wife. The first of these propositions has been settled by this court against the appellant. Gilman v. Brown, 115 Wis, 1, 91 N. W. 227; State v. Lloyd, 133 Wis. 468, 113 N. W. 964. On the second proposition it is said that, there being no law authorizing the conveyance of land directly from husband to wife, and the husband having occupied the premises for a year after execution and delivery of the deed, there was a break in the continuity which defeats the defendant’s claim of adverse possession. The fact that the strip of land in dispute was not within the calls of the deed was not sufficient to defeat the claim of adverse possession respecting such tract. Gilman v. Brown, 115 Wis. 1, 91 N. W. 227. And although the deed when made did not convey a legal estate, it, under the well-settled doctrine of this court, conveyed an equitable estate, and the fact that possession was not delivered at the time of the execution of the deed was not sufficient to interrupt the running of the statute against the true owner, Because the holding by the husband and wife, or either of them, was an adverse holding as against the true owner, and, under the evidence, before the commencement of this action the entire title and possession had passed to the defendant. In any event the widow, defendant, her husband having died before the action was brought, was entitled to dower in this land, and had the right to continue to occupy the same and receive rents, issues, and profits, under sec. 3872, Stats. (1898). So there can be no doubt, we think, under the facts in 'this case, that there was ■such privity between defendant and her husband as to- eon394 stitute a continuity of adverse possession from the husband to the defendant. McEntire v. Brown, 28 Ind. 347; Epperson v. Stansill, 64 S. C. 485, 42 S. E. 426; Montague v. Marunda, 71 Neb. 805, 99 N. W. 653. It was also held by this court in Ill. S. Co. v. Budzisz, 106 Wis. 499, 507, 83 N. W. 534, that privity may be created in any way that will prevent a breah in the adverse possession, even by parol transfer. Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027. It is further insisted that the evidence of defendant to the effect that she never intended to claim more than up to the true line was sufficient to defeat her claim of title by adverse' possession. But that contention is fully met by the decisions-of this court. Ill. S. Co. v. Budzisz, 119 Wis. 580, 97 N. W. 166; Gilman v. Brown, 115 Wis. 1, 91 N. W. 227; Ill. S. Co. v. Bilot, 109 Wis. 419, 84 N. W. 855, 85 N. W. 402; Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413. We hold that the findings are supported by the evidence, and the-judgment must be affirmed. By the Court. — The judgment of the court below is affirmed.