147 Wis. 133 | Wis. | 1911
As indicated in the foregoing statement of facts, the only question presented by this appeal is whether or not the finding of the court to the effect that plaintiff and its predecessors in title had continuously for more than twenty years immediately preceding the commencement of this action adversely occupied the disputed strips of land is supported by the evidence. It clearly appears, and the defendants admit,
The defendant Harter testified that, thirty-nine years ago, Mrs. Lemke, who then owned a part of what is now plaintiff’s farm, admitted that the fence between them was not on the true line, and that they agreed to have it surveyed. The old fence, however, remained, and Harter made repairs on it up to within two or three years. Mrs. Lemke testified that both Harter and Dingeldein told her the fences were not on the true line and that she was ready to build fences on the true line, but that the fences remained as before and she claimed the right to use, and did use, the land up to the fences as they existed. Smith, a son of a former owner of the Harter land, testified that his father claimed the fences were not on the true line, but it does not appear to whom the claim was made. Mr. Herman Lemke, a son of Mrs. Lemke, testified that Din-
There was considerable testimony on behalf of plaintiff tending to discredit the testimony above referred to. But even conceding the testimony of defendants’ witnesses to he true, it yet nevertheless appears that each and every one of plaintiff’s predecessors in title claimed the right to occupy the lands up to the existing fences and did in fact so occupy them. It further appears that the defendants continued to repair and maintain their portion of the partition fences up to within a few years and that at no time during the last forty years has the location of such fences been changed. We have therefore a situation where plaintiff and its predecessors in title for more than twenty years continued to use, under a claim of right to do so, the lands up to the fences as they existed. This constitutes an adverse user within the meaning of sec. 4214, Stats. (1898), irrespective of the fact as to whether it was' admitted that the fences might not he on the true government line. Wollman v. Ruehle, 104 Wis. 603, 80 N. W. 919; Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413; Ill. S. Co. v. Budzisz, 106 Wis. 499, 81 N. W. 1027, 82 N. W. 534; Pitman v. Hill, 117 Wis. 318, 94 N. W. 40; Ovig v. Morrison, 142 Wis. 243, 125 N. W. 449. The statute makes the sole test of adverse possession of land a physical exclusion of all
The claim is made that the fences were not substantial in character, thus showing that they were intended for a temporary purpose, and that more substantial ones would be built when the true line was ascertained. They were such as are usually found in similar localities at the times they were used, being made of brush, poles, rails, and wire. It is needless to discuss whether or not they were substantial. They were maintained for over forty years in the same place; that shows they were reasonably permanent in fact, whatever the intention of the parties may have been. It also appears that part of plaintiff’s land adjacent to the fences in question consisted of pasture and part of tillable land. The same was true of the lands on the defendants’ side. It cannot be said, in face of the exclusive, notorious, and uninterrupted possession of the land up to the fences by plaintiff and its predecessors in title for over forty years, that the presumption flowing therefrom that such possession was adverse was overcome by the evidence of the defendants. The finding of the trial court, therefore, is not only supported by the evidence, but is in accordance with the preponderance thereof.
By the Court. — Judgment affirmed.