| Wis. | Feb 10, 1920
Lead Opinion
The following opinion was filed November 6, 1919:
Unquestionably plaintiff’s initial possession was permissive and not adverse, but permissive possession may ripen into an adverse one by declarations or acts, or both. 2 Corp. Jur. p. 124, §§ 210, 133, and 228; Bartlett v. Secor, 56 Wis. 520" court="Wis." date_filed="1883-01-09" href="https://app.midpage.ai/document/bartlett-v-secor-6603988?utm_source=webapp" opinion_id="6603988">56 Wis. 520, 14 N. W. 714; Meyer v. Hope, 101 Wis. 123" court="Wis." date_filed="1898-11-01" href="https://app.midpage.ai/document/meyer-v-hope-8186057?utm_source=webapp" opinion_id="8186057">101 Wis. 123, 77 N. W. 720. And continuous and exclusive-possession of land for over, twenty years raises the presumption that possession is adverse and throws the burden of proof upon the true owner to show that it was permissive. Bartlett v. Secor, supra; Meyer v. Hope, supra. There may also be an ouster of cotenants by adverse possession. 1 Ruling Case Law, 743.
In this case the evidence is practically undisputed, and the question is whether the finding of the trial court that plaintiff had gained title by adverse possession is so clearly wrong as not to be a permissible inference from all the evidence. If it is a permissible inference we ought not to disturb it. Meyer v. Hope, 101 Wis. 123" court="Wis." date_filed="1898-11-01" href="https://app.midpage.ai/document/meyer-v-hope-8186057?utm_source=webapp" opinion_id="8186057">101 Wis. 123, 77 N. W. 720. It is argued by defendants that in making its findings of facts the trial court overlooked the rule that as cotenants actual notice of adverse possession must be brought home to them and that the evidence fails to establish such notice. It is true that no actual notice by declaration is shown, but actual notice may be given by act's as well as by declarations. And so, ■ also, the best evidence of ouster is the exclusive, actual possession of the one claiming to hold adversely. 1 Ruling Case Law, 702. Here plaintiff was in possession of the land for nearly fifty years, rendering an account therefor to no one. He was in the exclusive, notorious possession of it for some thirty years previous to the commencement of the action, to thé knowledge of the defendants, treating it in every respect
Since the statute of limitations began to run against thé' mother of George Logan, a minor defendant, it also began to run against him. Swearingen v. Robertson, 39 Wis. 462" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/swearingen-v-robertson-6602004?utm_source=webapp" opinion_id="6602004">39 Wis. 462. But of course such a rule does not apply to redemption by minors from tax sales, because sec. 1166, Stats. 1917, gives them one year' after reaching majority within which to redeem. Karr v. Washburn, 56 Wis. 303" court="Wis." date_filed="1882-12-12" href="https://app.midpage.ai/document/karr-v-washburn-6603951?utm_source=webapp" opinion_id="6603951">56 Wis. 303, 14 N. W. 189; Carry v. Shea, 144 Wis. 135" court="Wis." date_filed="1910-12-06" href="https://app.midpage.ai/document/corry-v-shea-8190039?utm_source=webapp" opinion_id="8190039">144 Wis. 135, 137, 128 N. W. 892.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). Although the court below based its conclusion that plaintiff was owner apparently upon two grounds: first, more than twenty years’ adverse possession, and second, by entry under the deed from his mother of November, 1883, recorded August 17, 1901, and more than ten years’ possession thereunder, yet the majority opinion mentions only the first ground as the basis of its judgment. The opinion specifies no definite time when the plaintiff flung to the breeze his banner of exclusive
Reliance is placed upon his improvements, yet that of the building of the house was in 1882, before the deed from his mother, while she was in possession, and to replace the old one then burned, and therefore that could not be fairly treated as a .hostile act. The barn, erected at a cost of $1,000, was not built until 1901, so that if that was a raising of the flag of invasion it has not yet ripened into title. His improvements, therefore, ought not to be deemed as acts of ouster as evincing a settled purpose to exclude his cotenants. Some such purpose must appear. Ipswich v. Proprietors, etc. 218 Mass. 487" court="Mass." date_filed="1914-09-10" href="https://app.midpage.ai/document/inhabitants-of-ipswich-v-proprietors-of-jeffries-neck-pasture-6432825?utm_source=webapp" opinion_id="6432825">218 Mass. 487, 491, 106 N. E. 169.
Reliance is placed upon his payment of taxes, yet this
The court below found laches on the part of defendants. Yet this court in Saladin v. Kraayvanger, 96 Wis. 180" court="Wis." date_filed="1897-04-30" href="https://app.midpage.ai/document/saladin-v-kraayvangere-8185539?utm_source=webapp" opinion_id="8185539">96 Wis. 180, 70 N. W. 1113, where there was no notice of any change in the character of the holding by the one asserting such a claim against his cotenants, denied such á defense. If there were laches, there certainly ought to be some definite time established when the existing relationship of the parties should have been changed. Unless the front end of such period of the twenty years is certain and fixed, the other end is rather wavering and uncertain. No particular time is suggested when that which was concededly permissive should have been halted by some affirmative act or declaration on the part of defendants or was halted by an affirmative act on plaintiff’s part. Some such act or declaration is necessary. Lecroix v. Malone, 157 Ala. 434" court="Ala." date_filed="1908-11-26" href="https://app.midpage.ai/document/lecroix-v-malone-7363761?utm_source=webapp" opinion_id="7363761">157 Ala. 434, 47 South. 725; Hynds v. Hynds, 274 Mo. 123" court="Mo." date_filed="1918-04-08" href="https://app.midpage.ai/document/hynds-v-hynds-8019781?utm_source=webapp" opinion_id="8019781">274 Mo. 123, 202 S. W. 387; Zimmerman v. First Nat. Bank (Mo.) 201 S. W. 852. The defendants ought not to be penalized for their continued charitable permission.
The case cited in the majority opinion of Bartlett v. Secor, 56 Wis. 520" court="Wis." date_filed="1883-01-09" href="https://app.midpage.ai/document/bartlett-v-secor-6603988?utm_source=webapp" opinion_id="6603988">56 Wis. 520, 14 N. W. 714, was not one involving tenants in common, but between persons claiming through different conveyances, and therefore not controlling in this case; and the same is true of Meyer v. Hope, 101 Wis. 123" court="Wis." date_filed="1898-11-01" href="https://app.midpage.ai/document/meyer-v-hope-8186057?utm_source=webapp" opinion_id="8186057">101 Wis. 123, 77 N. W. 720. In the latter, case, in defining adverse possession, the expression there used includes the word "unexplained” as one of the essential elements of such possession, as well as its needing to be notorious, exclusive, and continuous. But here the testimony of plaintiff himself does explain, and explain clearly, that he thought the de
The finding by the court below that the defendants ought to have known since 1883 of plaintiff’s hostile claim, and upon which finding the majority opinion affirms the judgment, is rather an inference or conclusion of law gathered from undisputed facts than the judicial determination as to where the truth lies, arrived at when there is dispute over facts, and therefore the former is not so controlling in this tribunal as the latter. Weigell v. Gregg, 161 Wis. 413, 416, 154 N. W. 645.
The plaintiff assumed the burden- of showing title as against his cotenants, all claiming under the same ancestor, and I do not think he has overcome the record title, and that defendants should have judgment.
I am authorized to state that Justices Kerwin and Rosenberry concur in this dissent.
A motion for á rehearing was denied, with $25 costs, on February 10, 1920.