120 Wis. 102 | Wis. | 1903
The plaintiff’s first contention is that the ten-year statute of limitations is not sufficiently pleaded. The claim is that the plea does not show that the defendants went into possession under an instrument in writing, and further that it is bad because it alleges twenty years’ possession, instead of ten, as required by secs. 4211, 4212, Stats. 1898. The claim that the allegation of twenty years’ possession, instead of ten, in any way vitiates the plea, if otherwise good and not misleading, is so obviously untenable that it is unnecessary to discuss it. If the defendants have had twenty
TRe trial court was also right in refusing to require the defendants to elect between the two defenses. Under the Code a defendant may plead as many defenses as Re has, even though they be based on inconsistent legal theories, unless they be so repugnant in fact that proof of one disproves the other. South Milwaukee B. H. Co. v. Harte, 95 Wis. 592, 70 N. W. 821. This court has Reid that an allegation of adverse possession for twenty years is not inconsistent with an allegation of actual ownership by deed. Gilman v. Brown, 115 Wis. 1, 91 N. W. 227. Certainly, if these allegations be not inconsistent, claims of title under the ten and twenty-year statute of limitations cannot logically be called inconsistent.
But one ruling in the admission of evidence is complained of, and this question will be first treated. One of the intermediate deeds in the defendants’ chain of title, executed September 8, 1871, was never recorded; .and the plaintiff ob
Coming to the merits of the case, we find that the facts were substantially without dispute. As to the record title, both parties trace their titles to Rufus C. Palmer, who originally owned the land on both sides of the river, and erected the dam in question, and built and operated a sawmill on the east side prior to 1860. There are two chains of title from Rufus O. Palmer — one covering the land on the east side of the river, and one the land upon the west side of the river— and the question as to the record title to the dam and water power depends upon the construction to he given to several of the deeds in these chains of title. The first deed was executed by Rufus C. Palmer October 8, 1866, to J. PT. Palmer and W. H. Stacy, and covered a strip of land on the west side of the river fifteen rods in width along the river, beginning above and extending some distance below the dam, together “with 1,500 inches of water under a five-foot head,” and containing a covenant by the grantees to defray half the expense of keeping up the dam so as to keep up a five-foot head of water. Por convenience, this deed will be called deed 3STo. 1. J. PT. Palmer and Stacy built a gristmill on the west side in
The plaintiff’s contention is that deed Do. 1 conveyed no part of the stream or dam, but stopped at the water’s edge, and that deeds Eos. 2 and 3 conveyed one half of the whole dam and power (subject to the use of 1,500 inches under deed Do. 1), and that hence, when Goodwin purchased the remaining Palmer half from Stacy, he became the owner of the whole dam and power, and, having deeded but one half thereof to the Whites, he still retained one half, which he sold to the plaintiff.
Examining these claims in order, we must first consider what passed under deed Do. 1. This deed, in terms, conveys a fifteen-rod strip, covering the west bank of the river opposite the dam, and extending some distance both above and below. The well-established principle is that a deed conveying the bank of a stream will be presumed to convey to the middle or thread thereof, unless such presumption be overcome by actual reservation in the deed, or by a clearly expressed intention in the deed to limit the conveyance short of that point. Norcross v. Griffiths, 65 Wis. 599, 27 N. W. 606. It is said that this principle does not apply to the case
This deed being so construed, there can be little doubt as-to the proper construction of deeds Nos. 2 and 3. It is true-that the words in these deeds are ambiguous, and might be construed as conveying one half of the whole dam and one half of the whole power, or as conveying one half of that part of the dam and power appertaining to the sawmill prop
It is said that it would be absurd to place a different construction upon substantially the same language in two deeds in the same chain of title, but this does not seem to be necessarily true. The facts and circumstances surrbunding and following the transactions may be so different as’ to necessitate a different construction, and such seems to us to be the case here. When the Webster deeds were executed, as we have seen, the grantor still retained an interest in the mill, and would presumably desire to retain corresponding interest in the dam and power, but when Goodwin’s deed was executed he'was divesting himself of all interest in the mill and ' lands; he had no further use for dam or power; and, further-'
But were the conclusion otherwise upon this question, the result of the'action would he the same, for the reason that the undisputed facts show that the defense of adverse possession under the ten-year statute has been conclusively proven. The evidence shows, without dispute, that Goodwin has been dispossessed of the entire property since the execution of his deed to the Whites, in 1874, and that since that time the defendants and their grantors have been in actual, exclusive, and adverse possession, claiming title under deeds, and that during that whole time, and until some time in the year 1901, neither Goodwin, nor any one under him, ever made any claim of title to the dam or water power. No more complete case of exclusive and hostile possession on the one side, and abandonment of claim on the other, could well be proven.
But it is said that the defendants and their grantors were cotenants of Goodwin, and that they cannot claim to hold adversely until they have brought home to him actual knowledge of the adverse character of their possession. The difficulty with this contention is that there never was a time when the defendants or their grantors knew that any cotenancy on the part of Goodwin was claimed, and never acknowledged any such right. The rule as stated in Sydnor v. Palmer, 29 Wis. 249, is that where a tenant in possession, having once acknowledged the title of another cotenant, seeks to turn his possession into an adverse holding, he must bring home actual knowledge of his adverse holding to the cotenant, unless his exclusive holding has been so long continued as to
By the Oourt. — Judgment affirmed.