101 Wis. 123 | Wis. | 1898
It is considered that the only question which requires special consideration in this opinion is, Does the evidence warrant the conclusion of the trial court that the defendant had been for more than twenty years in the adverse possession of the land in question, before this action -was commenced ? That defendant had been in the .actual, continuous, exclusive, notorious occupation of the land for the time
The doctrine that evidence of adverse possession must be construed strictly and every reasonable presumption be made in favor of the true owner is well understood, but that does not avail against the fact of exclusive, notorious, unexplained, continuous occupation for the requisite period to acquire title by prescription. When that is established it is conclusive as to the nature of the possession till rebutted by some satisfactory evidence. It overcomes the presumption previously existing in favor of the true owner, and a presumption arises from the facts in favor of the occupant, that his occupancy was characterized by all the other elements requisite to adverse possession, i. e., that it began by the requisite entry, claiming title, to set the statute of limitations on the subject running, and so continued down to the end of the statutory period. This subject was so recently considered in Wilkins v. Nicolai, 99 Wis. 178, and Wollman v. Ruehle, 100 Wis. 31, that little if anything further need be said other than to refer to the opinions in those cases. In the former it is said, the rule that the evidence of adverse possession must be positive, and be strictly construed against the person claiming a prescriptive right, and that every reasonable presumption should be given in favor of the true owner, is fully recognized, but along with that is another rule just as firmly established,— that open, notorious, and continuous use without objection for more than twenty years, unexplained, establishes the fact of adverse possession from the beginning and a perfect title by prescription. So the fact of adverse possession was unquestionably established here, unless th <¡> prima facie case made by the continuous, open, exclusive occupancy by defendant was met by circum
We have carefully, examined the record, and are unable to find evidence therein to warrant us in saying the trial court erred in the finding on that point. There are many circumstances supporting the presumption which arises from defendant’s occupation, and many circumstances tending to impeach that presumption. On the part of the plaintiff, there is evidence tending to show that defendant went into possession of part of the premises, at least, by consent of the deceased. That, if not overcome, would defeat the claim of hostile occupancy at the start. On the other hand is evidence that in 1873, long after the alleged permissive entry was made, defendant mortgaged the entire property for $1,200 to one Garthwaite, the deceased being one of the subscribing witnesses, and that the mortgage was recorded the day of its execution. There is pro satisfactory exjfianation of those circumstances, to militate against their standing as conclusive evidence of an assertion of title to the property by defendant against the deceased and all coiners. The giving of the mortgage itself, unexplained, is such an assertion of title, but it is made unanswerable by the declarations contained therein of ownership by the mortgagor, which must be presumed to have been brought home to the knowledge of the deceased, because of his witnessing the instrument. A mortgagor even, in possession, may start the statutory period of adverse possession running against the mortgagee by an assertion of title, or the doing of some act to the knowledge of the mortgagee inconsistent with his rights. Jones, Mortgages, § 1211; Maxwell v. Hartmann, 50 Wis. 660. -True, when one enters into possession of land of another, the presumption is, till the expiration of the period requisite to make title by prescription, that the entry was subordinate to the title of such other. Though such presumption be succeeded by that of a hostile entry upon
There seems to be no circumstance to change the nature of defendant’s possession or claim of title after the making of the mortgage, worthy to be considered as explanatory of
From what has been said it is .manifest that the deed of the heirs of plaintiff’s intestate did not, as a matter of law, change the character of defendant’s possession. It is a mere quitclaim deed. Such a deed may convey a full title to property or not any interest whatever. Its effect is to convey to the grantee in fee, his heirs and assigns, whatever title the grantor has. The taking of such a deed by defend.ant was consistent with the continuance of an existing ad
Much stress is laid by the learned counsel for appellant on language often found in the .books, that “adverse possession is not to be made out by inference, but by clear and satisfactory proof.” That is good law. It is so recognized by all courts and text writers, but there is some danger of a wrong application of it, as evidenced by that vigorously contended for in appellant’s brief, and repeated on the oral argument. The evidentiary facts essential to adverse possession cannot be established by mere inference, and that is as far as the rule goes. That is what is meant by Dixon, C. J., in Sydnor v. Palmer, 29 Wis. 226, to which our attention is specially directed. To say that a judicial conclusion as to facts in issue, or any one of them, cannot be established by a process of reasoning from the probabilities which arise from premises established by proof, in other words, by inference or presumption, would be a novel doctrine. Certainly no such doctrine is found in the books. Conclusions may be reached in judicial proceedings concerning the most important affairs of life, by taking account of the reasonable probabilities from conceded premises, or those found to exist, by competent evidence. A person deliberately sends a leaden bullet crashing through the brain of another. The result is death.- Those facts being established, the inference arises that such person intended the natural result of his conduct and is guilty of a felonious homicide. A person goes upon a railroad track at a street crossing with full opportunity to see an approaching train, and is injured by it. From that situation, by inference, we deduce the conclusion that he did not look for the evidence of danger. If he says he looked but did not see that which was in plain sight, we infer from
By the Oowrt.— The judgment of the circuit courtis affirmed.