Lampe v. Kennedy

45 Wis. 23 | Wis. | 1878

Cole, J.

We think the learned circuit court erred in directing the jury to find for the defendants upon the evidence introduced on the trial. The plat of the quarter-section made by Major Legate in June, 1847, was in evidence, and should have controlling weight in the construction of all deeds made by Goodsell under it. It appears that this plat, by com ¡non consent, was made the common muniment of title by all persons interested in the land, and was intended as a guide to Good-sell in making his deeds. Under these circumstances, the plat would seem to be the best evidence upon all questions of disputed boundary. Proper -weight being given to the plat, it is plain that the evidence tended to show that the plaintiff was entitled to recover a definite portion of land which could easily be identified from such plat and the deeds introduced on the trial. It is true, the plat is not referred to in the deeds; but we see no reason why this fact should prevent it from being resorted to in order to ascertain the boundary of any lot in dispute. It appears that the stakes put up to mark the boundaries of the lots as described in the deeds and designated on the plat, could not be found. There were therefore no artificial monuments which fixed the boundaries, as claimed by defendants’ counsel. But the boundaries on the plat could be readily ascertained from the government surveys.

. It is said by defendants’ counsel, that the deed from Good-sell to Bannan and others requires the south line of their lot to be so run as “to leave Rowell’s fence on Rowell’s lot,” and that consequently the fence was an established boundary for the plaintiff’s lot on the north. But it will be noticed that the language in the deed does not make the fence a boundary, but merely says that the south line of defendants’ lot must be so run as to leave the fence on the plaintiff’s land. However, when that deed is interpreted by the plat, as it should be, the true boundary between the plaintiff’s and defendants’ land will be ascertained. Besides, Goodsell had no authority to change the boundaries as fixed by the plat.

It is said that the defendants knew nothing of this plat, and that even if Goodsell was governed by it in making his conveyances to the several lot-owners, the defendants ought not to be affected by it. "We fail to see any good reason for holding that the defendants should not be affected by the plat. The defendant McGuire was one of the original claimants by whose direction this plat was made; the defendant Tormey took his interest on the death of his brother Uicholas, in 1850, who was another of the original claimants; and the other defendants are lessees under these parties. Under these circumstances, the plat, as it seems to. us, was a proper document to be resorted to, to determine the true boundary line. True, the deed from G-oodsell to Barman and others was prior in date to the deed to Barnard, under which the plaintiff claims. But that circumstance is immaterial, inasmuch as the plat was the foundation or common muniment of title for all the claimants, and Groodsell says he was solely guided by it in. making his deeds. The plat, therefore, was entitled to controlling weight in determining all questions of disputed boundary.

It follows from these views that the judgment of the circuit court must be reversed, and a new trial ordered.

By the Oourt.— So ordered.