Welton v. Poynter, 96 Wis. 346

Welton v. Poynter

96 Wis. 346 | Wis. | 1897

Winslow, J.

This is an action of ejectment for a piece of farm land about five rods in width and fifteen rods in length. The question is really one of the location of the boundary line between the plaintiff and defendants. The plaintiff’s lands are west of, and immediately adjoining, the defendants’ *347lands. The plaintiff’s line on the east, according to his deed and the deeds of all his grantors for nearly thirty years, is a north and south line eight rods east of a certain quarter-section line. For the same length of time this line has been supposed to be marked by a fence which stands eight rods east of a line which for the same length of time, and probably longer, has been reputed to be the said quarter-section line. The occupation of the plaintiff and his grantors for nearly thirty years has been up to this fence and no further, without controversy. Other conveyances of land in the same and the adjoining quarter section have been made with-reference to this reputed quarter-section line, and fences built in accordance therewith, which have stood many years and still stand. There is no evidence as to the existence of any stakes or bearing trees, or other monuments showing the original location of the line. In 1895 a survey was made by the county surveyor, and he testified that he located the line five rods east of its ancient reputed location; but he does not state how he located it, from what point he started, or whether he found an original stake or monument.

While it cannot be positively asserted that the reputed quarter-section line is located upon the line as originally surveyed, the evidence of undisputed occupation and fencing in accordance with that line for about thirty years, not only of the piece of land in controversy but of other parcels of land in that immediate neighborhood, raises a presumption that the line so recognized is the true line and is located .upon the line of the original survey. Racine v. Emerson, 85 Wis. 80, and cases there cited. So strong a presumption is thus raised in the present case that we do not regard it us overcome or seriously weakened by the simple fact that upon a resurvey, based upon no original monument, another .line several rods distant is established. Furthermore, we think that the evidence here is sufficient to show a location by the parties of the line between their holdings, with the *348obvious intention of making it the true line, which has been followed by such long acquiescence as to be binding upon the parties and their privies. Pickett v. Nelson, 71 Wis. 542-546; Newell, Ejectment, 559, 560.

The judgment for the defendant was right, and must be-affirmed.

By the Court.- — -Judgment affirmed.