Borkenhagen v. Vianden

| Wis. | May 3, 1892

Lyon, C. J.

The case was tried throughout on the theory that Franke conveyed to Green, and the devisee of Green to the plaintiff, the same land which the defendant, Vianden, conveyed to Franke. The jury were instructed, in substance, that if the lines, courses, distances, and area of the property conveyed, as specified in such deed, were all inconsistent with the boundary of the tract by the right bank of the Kinnickinnic river, the latter boundary or “ call ” in the conveyance must be disregarded. A great mass of testimony was introduced to show such inconsistency, and the jury must have found that it existed, for they disregarded the bank of the river as the westerly line of the land conveyed, and established such line at a point west of the west bank thereof. The instruction is erroneous.

In the conveyance by Vianden to Franke one bank or the other of the Kinnickinnic river is the western boundary of the land conveyed, just as certainly as the section line is the east boundary thereof, and controls the distances and area specified in the deed. This is elementary law. The only question which'can be raised under that cohveyance as to the extent and location of the land conveyed is whether the right bank of the river is the east or west bank thereof. The river flows from southwest to northeast. We have little doubt that the east bank — or the bank lying to the right of an object passing down stream — is the right bank of the stream. But, however that may be, the conveyances by Franke to Green, and by the devisee of Green to plaintiff, remove that possible ambiguity, and make the east bank of the river the western boundary of the land conveyed. Those conveyances also show conclusively that the quantity of land specified therein was not intended to be controlling, for to the specification of such quantity the formula “ more or less ” is added in each conveyance, which shows it to be a mere estimate, and by necessary inference subordinates quantity to fixed calls or monuments. Hence, whatever may be the proper construction of the conveyance by Vicindm to Franke, it is certain that the plaintiff owns only to the east bank of the river. She can only recover that to which she has title. The verdict and judgment should have been for defendant. The verdict being for plaintiff, the motion for a new trial should have been granted.

By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.