Eiden v. Eiden, 76 Wis. 435

Eiden v. Eiden

76 Wis. 435 | Wis. | 1890

Cassoday, J.

The east line of the forty in question constituted the center of the public highway, which was four rods wide. It is claimed in the answer that the partition line and fence between the thirty acres and the balance of the forty, established by the defendant and his father in 1858, was sixty-two rods west of the center of the highway— that is to say, sixty rods west of the west line of the highway. The evidence fails to establish the distance with precision. The surveyor who testified on behalf of the plaintiff fixed the west line of the east thirty acres, fifty-nine rods and four links west of the center of the highway. He testified, in effect, that there^was a portion of an old fence and *438a hedge-row some two rods west of that west line; that the balance of the forty after thus taking out the thirty acres, contained about ten and one-half acres; that he did not know exactly how much the forty overran; that it was thirty-four links east and west, and twenty-two links north and south. In another part of his testimony he said the forty overran just three quarters of an acre. Of course, the strip of two rods in the highway made an acre, or a very little over. The deed to the defendant in the spring of 1858 described just thirty acres, and the deeds to the plaintiff subseqently described just ten acres. Strictly construed, they left the title to a narrow strip in the father of the parties. It was the manifest purpose of the father to dispose of the whole forty. Upon his deeding to the defendant in the spring of 1858, a partition line was established by and between them, and a partition fence built and maintained by them thereon. The plaintiff claims under a deed from his father, executed more than fourteen years after such partition line had thus been established. That deed only purported to convey to the plaintiff ten acres of land. Whether the east line of that ten acres would have been east of the partition line thus located and established is not clear from the testimony. Under the evidence in the record, we are unable to say that the partition line thus located and established was not the true partition line. Since the father was bound by such location and establishment, we are inclined to think that the plaintiff, thus claiming under him, is also bound. Pickett v. Nelson, 71 Wis. 546; Culbertson v. Duncan, 13 Atl. Rep. (Pa.), 966; Bloomington v. Bloomington Cemetery Asso. 126 Ill. 221; Anderson v. Jackson, 13 S. W. Rep. (Tex.), 30.

In the case at bai’, however, it is conceded that the strip of land described in the complaint includes a strip of land west of the partition line so located and established; and one of the conclusions of law is «that the defendant is the *439owner and entitled to the possession of the strip of land thus described; and the judgment adjudges that the defendant is the owner of the same in fee-simple and is lawfully entitled to the possession thereof. Eor this clerical error the judgment cannot be allowed to stand. The judgment should give the respective parties the title and possession of the land up to the line so located and established.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment as above indicated,'and dismissing the plaintiff’s complaint.