83 Wis. 299 | Wis. | 1892
In the complaint in the partition suit, the premises in controversy in this action are described by metes and bounds, and as “a strip of land one and one-half rods wide, as and for a right of way to. and from said fifty-one acre tract, . . . which strip is a right of way through and over lands owned and occupied by William H. Hutchings,” the defendant; and in his answer he admitted .these allegations of the complaint. In the judgment in the partition suit it was adjudged that the two plaintiffs and defendant “ are the owners in fee and tenants in common of the lands and premises described in the complaint,” each owning in fee an undivided third thereof, and that the premises should be sold by a referee, etc. The judgment for partition is conclusive and binding on the parties to it and their privies, as to their title, although it does not
The difficulty with the plaintiff’s contention consists in the fact that, however broad and comprehensive the language of the judgment in the partition suit, yet his title is limited by the terms of the referee’s deed of the fifty-one acres and of the strip in question to the plaintiffs in the partition suit, Mary M. Howie and Samuel E. Hutchings, and by the terms of their deed to him, in both of which this strip is described, in addition to the'fifty-one acres, as “a strip of land one and one-half rods wide, as and for a right of way to and from said fifty-one acre tract [describing it by metes and bounds], which strip is a right of way through and over lands owned and occupied by William H. Hutchings,” who is the defendant in this action. It will be seen that this strip is deafly stated to be conveyed as and
For these reasons we are of the opinion that the plaintiff took only an easement or right of way over the strip of land in question, and that he could not maintain ejectment therefor. Racine v. Crotsenberg, 61 Wis. 481; Maurer v. Stiner, 82 Wis. 99.
By the Court.— The judgment of the circuit court is affirmed.