69 Wis. 280 | Wis. | 1887
This is an action of ejectment, brought by the plaintiff, to recover a strip of land which he claims to be the owner of, and which is a part of the south half of the southeast quarter of section 34, township 11 N., of range 19 E. The plaintiff is in possession of all the south half of said southeast quarter except the strip in question, under deeds conveying to him the south half of said southeast quarter. The defendant is in possession of the north half of said southeast quarter, under deeds conveying to him the north half of the said southeast quarter, and had been for more than twenty years before the commencement of this action; and, if the strip in question is not a part of said north half of the southeast quarter, still the defendant has in fact been in the actual possession of said strip of land for more than twenty years before the commencement of this action, and he now claims the right to hold the same by adverse possession, though it be admitted that it is a part of the south half of said southeast quarter.
The evidence shows that a Mrs. Clow, who is the grantor of the plaintiff, was in possession of said south half of said southeast quarter, more than.thirty years ago, claiming to own the same by virtue of a deed conveying to her said
The defendant’s evidence is that he has occupied all the land north of the fence, from the time he took possession in 1863, down to the commencement of the action, cleared some part of the land off, and cultivated up to the fence. He says he occupied up to the fence, because he did not know but what that was the line between the lands. The defendant claims that after he bought the lands he and the plaintiff divided the fence by parol, he agreeing to keep in repair the east half, and the plaintiff, the west half. This is denied by the plaintiff. Plaintiff also gave evidence tending to show that the defendant did not claim to own up to the fence, unless the fence was the true line between the north and south halves of the quarter section. Plaintiff testified that when he first bought the land, more than ten years ago, he spoke to the defendant about the fence, and told the defendant the fence was too,crooked, and he could not keep it on his land; that the defendant then asked him what he would take for it, that he refused to sell, and told him he would get Brosius to survey the line. Defendant replied that Brosius could not survey a straight line. He testified that the defendant did not then claim to own up to the fence. He also testified that after he got the line surveyed, Horlemus, the defendant,- asked time to build his part of the fence on the line.
At the close of the evidence the court nonsuited the plaintiff, as is alleged on the part of the appellant, on the'
The claim made by the learned counsel for the appellant is that under the evidence it was a question of fact for the jury and not of law for the court, whether the possession of the defendant for twenty years and more was such an adverse possession as would bar the plaintiff of his right. Upon the proof admitted by the learned circuit judge in the case, there was certainly sufficient evidence to entitle the plaintiff to take the verdict of the jury as to the question whether the land in controversy was not a part of the south half of the southeast quarter of said section, described in the plaintiff’s deed of conveyance. If there was evidence sufficient upon this point to sustain a verdict for the plaintiff, the defendant was only entitled to a verdict in his favor upon the ground that ho had conclusively shown an adverse possession for more than twenty years before this action was commenced. This he could do, in the first place, by showing, by satisfactory and uncontradicted evidence, that the plaintiff and himself, or those under whom they claim, had agreed upon and established the fence in question- as a dividing line between their premises, and that the defendant had occupied the land on his side of the line for twenty years and more, previous to the commencement of the action, claiming to own up to the line. See Bader v. Zeise, 44 Wis. 96, 102; Tobey v. Secor, 60 Wis. 310, 313. It is hardly necessary to say that there is no such conclusive evidence in this case. In fact, the evidence shows that wffien the fence in question was first erected there was no agreement between the parties owning the lands. The fence was first constructed, according to the evidence, by the
The only other view of the case which would justify the court in directing a nonsuit or verdict for the defendant, is that the evidence conclusively shows that, when the defendant entered into the possession of his land, in 1863, which was conveyed to him by his deed, describing the lands conveyed as the north half of the southeast quarter,of said section, he took actual possession of this land lying north of the fence in question, claiming it a's a part of said north half of said southeast quarter, irrespective of the question of whether it was in fact a part of such north half described in his deed. The ordinary rule is that when a man enters into possession of land under a deed to him, he enters into the possession according to the deed, and takes possession of the lands described therein, and no other. If he claims to tak^- possession of land not described in the deed, the burden of the proof is on him that he took possession, in fact, of the lands not so described in his deed, and that he took such possession claiming to own the same, and in hostility to all other claimants. In order to make his possession hostile and adverse it may not be necessary to show any declaration of his showing the hostile intent at the time the possession was taken. The facts and circumstances attending the taking possession, the character of the possession, and its long continuance,' may justify a court or jury in finding the entry and possession adverse. Such continued
In our opinion, the court should have submitted the case to the jury upon the question of the adverse possession of the defendant, and that it was error to take that question from the jury.
The learned circuit judge having erred in refusing to submit the question of adverse possession by the defendant to the jury and ordering the plaintiff nonsuited, the judgment must be reversed.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.