Suring v. Rollman

WiNsnow, C. J. Upon the disputed question of fact in this case we shall make no extended remarks. Tbe circuit judge, with bis accustomed care and industry, analyzed tbe evidence in a written opinion which is perfectly satisfactory to us upon this question. There was much evidence of early landmarks, blazed lines, and tbe existence of bearing trees now destroyed, which strongly supported tbe contention of tbe plaintiff as to tbe original location of tbe quarter-post in question, and we think we should have reached tbe same conclusion which be reached were'we required to pass upon tbe controversy as a court of first instance. Tbe question of fact being settled, tbe only remaining questions arise out of tbe demurrer to tbe complaint which was [496] overruled before the answer upon the merits was interposed. That presented two questions: first, whether there was not a complete remedy at law,- and, second', whether two causes of action had not been improperly joined. It will be seen by the statement of facts that the appellants-here are the only defendants who appeared in the case or answered. If, therefore, as to them a good cause of action in equity was stated, it necessarily follows that the demurrer was-properly overruled so far as the first ground is concerned.. The circuit judge held that there was a good cause of action stated under sec. 3186, Stats. (1898), i. e. a good statutory-cause of action to remove a cloud from the title of real estate.. We can see no good reason for doubting this conclusion. The-statute referred to has considerably enlarged the equity powers of the court in this direction. A written memorandum, unwitnessed, unacknowledged, and unrecorded, and which contained no description of land, which could be located, was held by this court to be a cloud or claim which would support an action to remove it, when the-defendant persisted in claiming that he was entitled to some-interest in certain lands under it. Here it appears that the-answering defendants put on record a plat of land, acknowledged and certified as the statute requires, and that said plat is actually located and staked out on the ground and covers-the disputed strip of land; further, that the defendants have-claimed and are still claiming title to the disputed strip and are selling parts of it to others. This seems a tolerably robust setting up of claim to land, quite sufficient under the decisions to justify an action under sec. 3186, when the plaintiff still remains in possession of the land claimed or when the-land is vacant. Fox v. Williams, 92 Wis. 320, 66 N. W. 357; Broderick v. Gary, 98 Wis. 419, 74 N. W. 95. As to the second objection, there might perhaps be some-difficulty in holding as an original proposition that an equitable cause of action under sec. 3186 against one defendant [497] not in possession could be joined with a cause of action against another defendant in possession of a different parcel; but the question is whether any substantial right of the complaining party has been affected by the adverse ruling, even if erroneous when made. Sec. 3072m, Stats. (Laws of 1909, ch. 192). The appellants’ substantial rights were simply to meet the plaintiff in a court of equity and submit their proofs on the questions of fact, as well as their arguments upon the legal questions involved, and have such proofs and arguments fairly considered and passed upon. These rights have been fully preserved to them. These were substantially the grounds upon which the trial court disposed of these objections when they were renewed upon the final argument of the case. It seems to this court, however, that there is another and broader ground upon which the judgment may be affirmed, and that is that there was a good cause of action stated in equity independent of see. 3186, Stats. (1898), and that all of the parties joined as defendants were proper parties thereto. For the purposes of the case it may be admitted that a cloud upon title which will justify the bringing of an equitable action for its removal independent of the statute must be some apparent title or incumbrance rendering a resort to evidence aliunde the record necessary in order to show its invalidity. Gamble v. Loop, 14 Wis. 465; Pier v. Fond du Lac, 38 Wis. 470; Broderick v. Cary, 98 Wis. 419, 74 N. W. 95. Does this plat, made and recorded by the defendants, constitute such a cloud ? It is true that it purports only to cover land in the southeast quarter of section 12, while plaintiff’s land is in the southwest quarter, and hence the argument is that the plat constitutes no cloud on the title to any land owned by the plaintiff. The question, however, is not to be so easily decided. The plat itself does not seem to have been [498] actually produced iu evidence, but it is admitted that its measurements were commenced from the Melindy and Fitzpatrick comer as relocated. Thus it affirmatively appears that as actually located on the ground the plat encroached a number of rods over and upon the plaintiff’s land. Our statute governing such plats and authorizing them to be recorded requires as a prerequisite that an accurate survey of the land covered thereby be made, and that the boundaries of all blocks, streets, and alleys, as well as the comers of every lot and bioelk, the beginning and terminus of every street, and every angle of a street, be marked and established in the field by suitable monuments. It further requires that the boundaries of lots and blocks, with the length and courses of all exterior boundary lines, shall appear on the face of the map, and that the monuments shall be represented in their proper places on the map and the material of which they are made noted thereon, and, further, that a certificate of the surveyor, certifying among other things to the correctness of the map, shall appear thereon before the plat is entitled to record. Presumably all these requirements were complied with on the making and recording of the Krueger plat. It is quite apparent that you cannot divorce the plat from the survey. Under very familiar principles the monuments erected or placed in the ground at the corners of the lots, blocks, and streets control courses and distances named on the plat and fix the location of the comers which they represent. So the plat and survey go hand in hand, and the effect of the plat as a claim of title extends on the west to the corners marked and established on the ground, and thus the plat itself, in connection with the survey and the Melindy and Fitzpatrick corner-post, from which the survey starts, becomes a document on record, which seems apparently to entitle every purchaser of a lot upon the west side of the Krueger plat to assert title up to the line of the actual survey. Now it is well settled in this state that the common-law action qida timet may be brought when the plaintiff is out of [499] possession and the defendant is in possession in a case where by fraud or other means producing like results the defendant has an apparent title, the invalidity of which can only be shown by evidence aliunde the record. In such case the remedy at law by ejectment or trespass is not deemed sufficient, because the plaintiff is entitled to have the apparent title canceled or surrendered, and, as incidental to this equitable relief, the same court will decree the giving up of possession of the premises by the wrongdoer. Spiess v. Neuberg, 71 Wis. 279, 37 N. W. 417; Prickett v. Muck, 74 Wis. 199, 42 N. W. 256; Burrows v. Rutledge, 76 Wis. 22, 44 N. W. 847; Swihart v. Harless, 93 Wis. 211, 67 N. W. 413; Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974; Post v. Campbell, 110 Wis. 383, 85 N. W. 1032; Boon v. Root, 137 Wis. 451, 119 N. W. 121. This remedy is not confined to cases of fraud, but covers cases where, in order to give effectual relief, there must be the reformation, cancellation, or surrender of deeds, conveyances, or records affecting the title. Allen v. Ellis, 125 Wis. 565, 104 N. W. 739. Now in the present case it seems quite apparent that the Krueger plat, in connection with the monuments on the ground, constitutes a standing and continuing claim by all who now own or may hereafter own lots on the west side thereof, that their lots extend to the Melindy and Fitzpatrick line. The plat as located on the ground now does and will always continue to include this disputed strip. The only real and effective relief must be that which the court gave, i. e. a cancellation of that part of the plat which actually has been located on the ground on the west side of the correct line. The plat is an entirety and can and ought to be attacked as a whole, and, if so attacked, all the parties interested in the result of the attack) though their claims be several, should be made parties. We have not been referred to any cases precisely similar to this, but it seems to fall within well recognized principles, and we are satisfied was rightly disposed of. By the Court. — Judgment affirmed.