89 Wis. 394 | Wis. | 1895
It appears to be undisputed that in 1865-the Milwaukee & Chicago Railroad Company was in possession of the premises in question; that Prank Mangan, then in the employ of that company, asked the road master of that company to give him permission to build a house and make a garden thereon; that such permission was thereupon granted to Mangan; that Mangan thereupon constructed a-house thereon, and moved into it with his' family, and cultivated a garden; that after continuing to occupy the house for about three year's he sold the house to the defendant that he then moved out and took- a part of the fence away. In his deposition taken under sec. 4096, R. S., the defendant, concedes that he only bought the house from Mangan; that.
Where a person enters upon tbe lands of another' under an agreement with him, , tbe nature of tbe agreement necessarily determines tbe character of tbe entry. But where be-enters without any such agreement, tbe question whether1 such entry is an ouster of tbe legal possession arising from tbe title depends upon tbe intention with which such entry is made. “ If made under claim and color of right it is an ouster; otherwise it is a mere trespass. In legal language, tbe intention guides tbe entry %nd fixes its character.” Probst v. Trustees, 129 U. S. 191; Hacker v. Horlemus, 74 Wis. 25. Whether such entry is an ouster, or merely in subordination to tbe plaintiff’s title, is therefore usually a question of fact for tbe jury. Ibid.
It seems to be conceded that tbe evidence is sufficient to-sustain a verdict to tbe effect that tbe North Chicago Boll-ing Mill Company became tbe owner of thé whole or at least a fractional part of tbe premises in question in 1885; but it is contended that tbe subsequent conveyance from that company to tbe Illinois Steel Company must be regarded as a nullity, for tbe reason that tbe evidence fails to show that tbe last-named company was ever in fact duly incorporated. However that may be, tbe evidence seems to be sufficient to support tbe contention that tbe Illinois Steel Company, upon receiving such conveyance, took possession of tbe property therein described, and claimed tbe premises in question. Tbis court has held that “ one who executes a deed to a body claiming to be a corporation is estopped from denying its corporate character to defeat tbe instrument.” Whitney v. Robinson, 53 Wis. 309. Tbis principle would
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.