Illinois Steel Co. v. Tamms

154 Wis. 340 | Wis. | 1913

Timlin, J.

In this action of ejectment commenced November 2, 1897, a verdict was directed for plaintiff, judgment thereon, and defendants appeal. The defendants claimed adverse possession not founded upon any written instrument for twenty years nest prior to- the commencement of the action. The error assigned, taken with appellants’ argument in support thereof, goes only to the sufficiency of the evidence witb reference to adverse possession, and no other question need be noticed. There was in evidence a lease by an agent of the Wisconsin Iron Company (the latter an as-_sbciation representing the owners).to one Ered Kuehn,.dated November 27, 1876, for tlmterm of one year from the first day of the same November, and another lease, dated July 1, 1887, from the North Chicago Rolling Mill Company, under which plaintiff claims, to Fred Kuehn for the term of five jiears. The first lease is informal as to description, but it was ^treated by counsel.as covering the premises in question, the boundaries of which at this time were very indefinite and uncertain. It appeared that Fred Kuehn and August Kuehn were brothers and partners in the business of catching and selling fish, and at some indefinite time in 1869 built a fish shanty on this property, which lay on the beach of Lake Michigan, and used the land for drying fish nets, storing fishing appliances, and perhaps for other similar purposes until 1874, when, according to the. evidence most favorable to appellants, a brother-in-law of 'the Kuehns, one Gustav^ Rosen-stack, became a member of this partnership. There is no definite evidence of inclosure of the area occupied or of claim of title by either the Kuehns or by the partnership prior to the incoming of Rosenstack, who died in 1893. Adverse possession by Rosenstack, originating in 1874, is attempted to be . established by the testimony of certain witnesses, who were very indefinite as to years and as to the extent of the possession claimed and as to acts of ownership prior to 1876, but testified to oral declarations made by Rosenstack about thirty years before the time of giving their testimony. This testimony is vague and uncertain as to when these declarations were made and as to whether Rosenstack was claiming individually or claiming possession in the right of the partnership of which he became a member in 1874 or 1876. The leases mentioned cover a period, of twenty-one years next prior to the commencement of the action. Fred Kuehn was the managing member of this copartnership and attended to its business affairs, while Rosenstack was engaged in working on the fishing tug setting and raising nets, etc., and probably drying nets on the beach. The land was low and wet at that time and Rosenstack gave orders to his men not to throw the ashes from the tug boat into the lake, but put them in a box and dump them, on the beach, saying that the land was his. After 1876 the claims of ownership and the acts of possession on the part of Rosenstack became a little more definite, but are still quite vague. There is no evidence going to show that there was any attempted transfer of any title to this land, oral or written, from the Kuehns to Rosenstack at the time the latter was taken into the firm, and if he was claiming to own the land he must have been claiming to own it either adversely to his copartners or in behalf of and as a member of that copartnership. It is extremely doubtful whether Mr. Rosenstack was taken into the copartnership in 1874 or 1876, and it may be safely said that the evidence fails to show with any reasonable degree of clearness or certainty that he was taken into the partnership before the managing partner, Ered Kuehn, signed the lease of 1876. If it is essential to adverse possession that he came into the partnership before the lease of 1876 was signed, the evidence is insufficient to establish that fact within the rule of Ill. S. Co. v. Budzisz, 115 Wis. 68, 90 N. W. 1019. This partnership continued, occupying the premises in question, up to 1884, when August Kuehn retired from the firm, selling his interest to Fred Kuehn and Rosenstack. The two latter as co-partners continued the business and the occupation of this land until 1889, when Ered Kuehn sold his interest in the firm to one Doepke and retired. In 1893 Rosenstack died and the business and the possession of the premises passed from this partnership to the appellants.

Under that view of the evidence most favorable to appellants, therefore, one member of this partnership was holding under a written lease from tbe owner of the legal title and another member was making oral declarations of his ownership, while the actual possession was in the partnership. The partner managing the business affairs of the copartnership, who signed the lease, was as notoriously in possession, if we consider him as a person separate from the firm, as was Rosen-stack. So considered, Fred Kuehn’s possession was the possession of the owner of the legal title, and, giving full weight to all that can be said in favor of Rosenstack’s possession, there was a mixed possession, and the possession of Rosen-stack was not exclusive of that of the tenant of the owner of the legal title. On the other hand, treating the lease to Fred Kuehn as an instrument of conveyance taken by him for the benefit and in behalf of the copartnership, Rosenstack had no possession at all, except under said lease and the succeeding lease, from 1876 up to the time of the commencement of this action. There are no presumptions in favor of adverse possession, because twenty years’ exclusive occupancy has not been shown in Rosenstack.

The learned circuit court in directing a verdict for the plaintiff said: “As I understand the meaning of the statute and under the decisions of our supreme court, the adverse possession which is necessary to ripen into perfect title must be exclusive, and, as I understand it, the exclusion must be as against the world.” The counsel for appellants has at considerable length and with great learning and industry attacked this as incorrect in law and respondent’s counsel refuses to try to uphold it. It is no doubt incorrect. But it is only an incorrect reason given for a correct decision. The possession must be exclusive of that of the owner. The adverse possession must be such as to furnish the true owner means of knowing of such adverse claim. Ordinarily mere open possession without his consent will do so. Lampman v. Van Alstyne, 94 Wis. 417, 69 N. W. 171; Kurz v. Miller, 89 Wis. 426, 62 N. W. 182. With one of the partners holding under a lease from it and tbe partnership occupying the premises, the acts of the partner Rosenstack, all the time actively engaged in the business of the firm, would bring no such means of knowledge to the owner. These acts would ordinarily and naturally be referred to his work as a member of-' the partnership and, where that partnership is occupying for partnership purposes under a lease to one of the partners, would not amount to a disseisin of the true owner. The oral declarations of Rosenstack, while indicative of his intention, were not communicated to the owner. The tenant of the owner, either for himself personally or for his firm, was in actual and visible occupancy. . The possession which may ripen into a title must not only be open (that is, not secret or surreptitious), but must also be exclusive of the true owner, or, what is the same thing, of the tenant of the true owner. The tenant’s possession is that of the landlord as provided in sec. 4216, Stats. So that this alleged possession of Rosen-stack lacked the two requisites mentioned in Jones v. Collins, 16 Wis. 594, i. e. it was not open, nor was it exclusive of the true owner for the time required by law, if at all. It follows that the judgment should be affirmed.

By the Court. — Judgment affirmed.