Illinois Steel Co. v. Jeka

119 Wis. 122 | Wis. | 1903

■ The following opinion was filed May 29, 1903:

Winsnow, I.

From the foregoing statement of the evidence offered by the defendants, it is evident that it was error to take the question of adverse possession from the jury. This evidence tended to show that the defendants and their privies in estate had held actual possession of the premises in dispute for more than twenty years prior to the commencement of this action. It was not necessary to show that there was paper evidence of transfer of possession from one 4o the other; the transfer may be parol and satisfy the requirement of continuity.

It is now well settled in this state that, when there has been continuous occupancy for twenty years, the presumption is then raised that such occupancy was under claim of right, and adverse to the world. Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413. This principle was expressed in Illinois Steel Co. v. Budzisz, 106 Wis. 499, 514, 82 N. W. 534, as follows:

“Actual, continuous, exclusive possession for the statutory period, unexplained, displaces the presumptions in favor of the true owner, and creates a presumption of fact that such possession and the commencement of it were characterized by all the requisites to title by adverse possession, and that the title of the adverse claimant is perfect. The statute so provides.”

When such continuous possession has been shown, it devolves upon the other party to show by evidence that it was not in fact adverse. Such, fact may, of course, conclusively appear by cross-examination of the adverse claimant’s own witnesses, but when such is not the ease the other party must produce the necessary evidence. In the present case, while there were some facts brought out in the defendant’s case which tended to show that the claim of defendant and his grantors was not at all times adverse, such as the execution of bills of sale of the house, instead of deeds of the land, we are not able to say that they were so strong as to justify the court in taking the case from the jury; nor was there anything conclusive on the subject introduced by the plaintiff in rebuttal. The question was one for the jury, under proper instructions.

By the Courts — Judgment reversed, and action remanded for a new trial.

A motion for a rehearing was denied September 29, 1903.