Allis v. Field
89 Wis. 327
| Wis. | 1895
PiNNey, J.

The evidence wholly fails to satisfactorily show that the alleged adverse possession, originating, as it is claimed, when Brown entered under his deed for the lots in question except the west eighty feet thereof,’was continuous for a period of twenty years. Evidence of adverse possession is always to be construed strictly, and every presumption is to be made in favor of the true owner. It is not to be made out by inference, but by clear and positive proof, and one in possession of land to which he has no claim of title is presumed to be in possession in amity with and subservience to the legal title. Sydnor v. Palmer, 29 *333Wis. 252; Wilson v. Henry, 35 Wis. 245; Hacker v. Horlemus, 74 Wis. 21; Dhein v. Beuscher, 83 Wis. 325; Ayers v. Reidel, 84 Wis. 283; Neilson v. Grignon, 85 Wis. 550, 553. The statute (R. S. sec. 4210) provides that “in every action to recover real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law, and the occupation of such premises by another person shall be deemed to have been under and in subordination to the legal title, unless it appears that such premises have been held and possessed adversely to such legal title” for the statutory period of limitation. The party making the defense of adverse possession must overcome this presumption, and must show, not only the adverse character of the possession upon which he relies, but that it has been continuously adverse for the requisite period. The possession of Brown, if adverse, did not continue for twenty-years, and the evidence in support of the defense is, we think, insufficient to show that after his death the possession of the strip in dispute was adverse and continuous long enough to make out with his possession the statutory bar. Any interruption or discontinuance of the possession of the wrongdoer, by operation of law restores the seisin and possession of the rightful owner. 1 Am. & Eng. Ency. of Law, 271; Graeven v. Dieves, 68 Wis. 317, 320, 321; Armstrong v. Morrill, 14 Wall. 146; Bliss v. Johnson, 94 N. Y. 235, 242. The evidence is that Brown’s possession began alout May 1, 1866; and after his death, and about May 1, 1886, G-ibbs came in as a tenant under the widow and heirs. This, is not sufficient to show that the statute had run before Gibbs entered. Adverse possession for about twenty years will not suffice.

The successive possessions of several distinct occupants of lands, between whom no privity exists, cannot be united to make up the requisite period. While it is not necessary, *334in order to create such, privity as will enable a subsequent occupant to tack bis possession to that of a prior occupant, tbat there should be a conveyance in writing, and although such prior possession-may be transferred by parol, yet it must clearly appear that the particular premises, as in this case the strip in dispute, were in fact embraced in the deed or transfer, in whatever form it may have been made.' No presumption can be indulged in on this subject. This is in accordance with Graeven v. Dieves, 68 Wis. 317; Ablard v. Fitzgerald, 87 Wis. 516; and cases above cited. In Graeven v. Dieves, supra, the failure to include it in the deed appeared on the face of the instrument under which the party claimed. The premises to which Brown acquired title by the deed to him, in all the transfers of the same parcel, had been described in terms that would exclude this strip of land from the operation of such conveyances; and, if the leases to Ellsworth and to Gibbs were in writing, it is probable, perhaps, that the premises leased were described therein in like manner, and as on the assessment or tax rolls. But whether this is so or not is not material. The burden of proof was on the defendant to show, by clear and positive proof, that the adverse possession of the Browns to this strip, if such it was in fact, was transferred to Gibbs. This is in accordance with the strictness of proof required to sustain the defense of adverse possession. The evidence is too ambiguous and uncertain to show that the statutory bar was complete when the lease was made. The evidence of the defendant, to whom Gibbs attorned and paid rent under his lease after the Browns had conveyed to him, we think, justifies the belief that the lease was in writing, and, if so, it would define and limit the possession he acquired. from the Browns. He testified that he “ should think there was a written lease then in existence between the Browns and Gibbs. I should think I had seen it, blit I can’t tell now, because I did not give anybody a lease.” „ And, if *335there was a lease, be did not know where it was then. There was nothing to show its loss or destruction, or that any search had been made for it; and no evidence was offered of its contents, and it does not appear that the leasing to either Gibbs or Ellsworth extended to the strip in question. We think that the evidence fails to show a right to tack the possession of the Browns to the possession of Gibbs.

The evidence also tends to show that the possession of Brown’s heirs was interrupted and discontinued sometime in April, 1886, and before the lease to Gibbs, but how long does not appear, nor is it shown what acts of control or ownership, if any, were exercised over the premises while vacant, so as to continue their possession. And, if the possession of Brown and his heirs' was adverse and was interrupted, the seisin of the plaintiff would be restored, and this in the present instance would be fatal to the defense; but upon this question we give no opinion, nor whether the possession of Brown or of his heirs was in fact adverse to the title of the plaintiff.

The evidence does not show by any fair inference that the fence was ever expressly or impliedly agreed on by the owners of the respective estates as the true line between them.

Eor the reason stated, we have arrived at the conclusion that judgment was rightly given for the plaintiff.

By the Oourt.— The judgment of the superior court is affirmed.