60 Wis. 500 | Wis. | 1884
The material question in this case is one of boundary between lot 3, claimed by the defendant, and lot 6, claimed by the plaintiff, in block 111, in the city of Mani-towoc.
The plaintiff obtained a warrant for the arrest of the defendant upon an affidavit charging him with breaking and entering upon lot 6, the close of the plaintiff and in his possession, and doing damage thereon. On the return before the justice the plaintiff filed his complaint charging that the defendant wrongfully entered the premises of the plaintiff, and tore down fences, injured the grass, trees, and shrubs, and did other damage thereon. The defendant answered by a general denial, and alleging title in himself to the locus in quo. Thereupon the cause was removed to the circuit court, because the title to land was in question. The action was commenced in April, 1882, and the trespass is alleged to have been committed on the 20th day of said month. The cause was tried in the circuit court before a jury, and the court directed a verdict for the plaintiff of nominal damages.
The objection made to this evidence, that it raised the question of adverse possession of twenty years without the same being pleaded by the plaintiff, is technical rather than substantial; for it would make no substantial difference whether it showed adverse possession, or the practical location of the boundary line of said lots by the adjacent owners which had been acquiesced in by them for over twenty years. The plaintiff sufficiently pleaded his title by alleging it directly in his affidavit for a warrant, and alleging the trespass to have been on his premises in his complaint; and the defendant, on general denial and the allegation of title in himself, obtained a removal of the cause to the circuit court. Adverse possession and prescription are matters of title, for either of them confer title.
The testimony on behalf of the defendant of a survey to ascertain the true line is not at all satisfactory, for a survey would be required to ascertain whether the starting-points in such survey were correct. The surveyor himself testified that in making it “he did not find any point known to him as an original monument in the city of Manitowoc.” The data upon which he made the survey need verification to make the survey of any use as evidence of a true boundary.
The questions upon which the several exceptions were taken on the trial are subordinate to this one substantial issue, and are not- material to the right and justice of the case.
The evidence was certainly very strong that the old fence was placed, and has been continued, where it was when disturbed by the defendant on what has always been considered as the true line, and for over twenty years. This case, in its material facts and in the law governing it, is quite analo
We think that the circuit court was. warranted by the evidence in directing a verdict for the plaintiff.
By the Court.— The judgment of the circuit court is affirmed.