206 Wis. 574 | Wis. | 1932
The findings of fact and conclusions of law cover twenty-five pages of the printed case and no useful purpose would be served by setting them out in full. In addition to the facts already stated, the court found that the quitclaim deed given by Mr. Spratt to the plaintiff was given freely and voluntarily and that no false statement or pretenses were used to obtain the same from Mr. Spratt. In its opinion the court said:
“There can, of course, be no question'what McNeill’s intentions were in 1915 with respect to the railway company’s property. He took a quitclaim deed from Spratt, including streets and railroad tracks. Spratt did not remember the giving of the deed, but he is an old man with a fading memory and he said so on the stand. He said he ‘might have quitclaimed.’ McNeill too'k that quitclaim with the intention of.setting up a claim of adverse possession and he followed it up with actual, open, and hostile possession. Of course he did not notify the railroad company; very few men could get title by adverse possession if they notified the true owner of their intentions. Good faith is not an element of adverse possession. McNeill started in to fill in the lots in various places; he improved and constructed roads; he built abutments for lumber along the tracks; he filled in along the lake and constructed concrete pillars along the lake; he moved buildings about and constructed new and permanent buildings on the railroad company’s property. The slightest attention to these matters would have given notice to the railroad company that here was a man exercising acts of ownership over its property.”
The court also stated that the right-of-way agent of the defendant called upon Mr. McNeill in 1924, interviewed him, went over the entire situation with him, discussed the making of a lease, traveled over the property with the plaintiff or his son, but never discovered, either by the nature of
“If any representative of the company had made the same observation or investigation in 1915, or any year after that, which Mr. Cox [the right-of-way agent] did in 1924, he would have discovered just what Mr. Cox did,”—
which apparently was that the plaintiffs were using the property just as Mr. Spratt had used it and just as it was used prior to 1920, under the name of George Spratt & Company. No change in the manner of use occurred which apparently even aroused the suspicion of Mr. Cox. There was negotiation in regard to the rental, and eventually the negotiation was dropped and this suit was begun January 10, 1929.
Upon consideration of this case we must start with the proposition that the use of the premises in the manner in which they were used by all of the occupants was in its inception permissive. Upon that point there is no dispute. When Mr. Spratt executed the quitclaim deed to the plaintiff he had nothing to convey and no thought of conveying anything except such rights as he might have under his lease ór by reason of the good will existing between him and the defendant relating to the use of the premises for their mutual benefit. From the findings of the trial court it must be accepted as a fact that the plaintiff attempted to so conduct himself as to bring himself within the rules of law relating to adverse possession without doing anything that would arouse the suspicion or prompt inquiry on the part of the defendant. Upon the trial an attempt was made to show that the use made of the premises in question was that customarily and ordinarily made by shippers to common carriers upon or near which they were situated and that such use was as a matter of custom not hostile but in the interest of both parties. The evidence was, however, excluded on plaintiff’s objection. We are unable to discover a single gir-
It is considered that under all of the authorities such possession as plaintiff had here was wholly lacking in characteristics essential to form a basis for assertion of title under the ten- or the twenty-year statute. While the good faith of the plaintiff may not be necessary in one aspect of the case, his evident purpose to conceal from the defendant his true intentions and to do nothing which would prompt the defendant to make inquiry, served to characterize the quality of his possession, and being permissive in its inception it lacks the element of hostility, which is one of the necessary characteristics of an adverse possession. The first hostile act, the
The fact that the plaintiff recorded a quitclaim deed given to him by George Spratt did not affect the situation, because by the terms of the recording act it applies only to those who subsequently deal with the title. Bradley v. Selden, 201 Wis. 61, 228 N. W. 494. For five years after purchasing the premises the plaintiff conducted all his operations in the name of George Spratt & Company, so that the defendant company had no reason to suppose that any one was claiming any other or different interest in the premises than that possessed by George Spratt. The plaintiff in fact did all that he could to conceal his true intention from the defendant. He never paid any taxes upon the premises. When defendant’s agent was there he carefully refrained from making any claim of title to the premises. He in fact did nothing to convert that which was in its inception a permissive occupation into one that was hostile and adverse. No doubt the extent of the plaintiff’s possession, other elements necessary to maintain plaintiff’s claim being present, was ample. The plaintiff’s claim fails because of the character of his possession. No decisive act of the plaintiff is shown which would tend to give notice that he was claiming title to the premises against all the world at any time prior to January, 1920. Assuming that there was some such act after 1920, when the corporation took title to the premises, this action was begun January 10, 1929, so that the plaintiff did not occupy the premises adversely under any possible
By the Court. — Judgment appealed from is reversed, and cause remanded with directions to dismiss the plaintiff’s complaint.
