192 Wis. 338 | Wis. | 1927
It is contended here that the court erred in holding that the defendant had not acquired by adverse possession and estoppel the right to maintain its encroaching footings and its cornices and moldings. The trial court was clearly right in holding as it did for the reason that such
An owner of land is not required, in order to prevent a trespasser from acquiring title thereto, to explore beneath the surface or to ascertain at his peril whether’or not an encroachment eighty or one hundred feet above the surface does or does not overhang his property. There may be cases, of course, as eaves of buildings and the like, where possession is open and notorious and the rule applies, but cases of that kind have no application to the facts here.
The plaintiff seeks a review of the finding of the trial court which denied it damages for loss of use and occupancy. The plaintiff contends upon its counterclaim that it had been deprived of the use of the premises for a considerable length of time by reason of substitution of the cantilever construction for that originally designed for the building and sustained damages on that account in the sum of $1,106. It also claims that it should have been allowed for the amount of its bill $859.82 for extra cost of construction paid by it to its contractors. Under sec. 274.12, Stats, (sec. 3049a), a respondent seeking to have reviewed errors committed against him is required to serve a notice of review. This notice must be served “any time before the case is set down for hearing in the supreme court,” and it must designate in what respect the respondent seeks a review, reversal, or modification of any part of the judgment or order appealed from. In this case no notice was served. There was, however, an understanding between the attorneys as to the printing of the case and an agreement that the case should be con-, sidered as if a notice had been served. This understanding was embodied in a memorandum and was firmly adhered to by counsel in this court upon the oral argument. There was the utmost good faith on the part of counsel. There are
By the Court. — Judgment appealed from is affirmed.