51 Wis. 89 | Wis. | 1881
This is an action to recover for the use and occupation of a lot which the plaintiff claims to own, and which the appellant occupied with one of its spur or side tracks for two years and more. The plaintiff had judgment in the court' below, and the defendant appeals, and alleges as error that the evidence does not show that the defendant occupied said lot in any way as the tenant of the plaintiff; that the plaintiff did not show that he owned the lot; and that the damages recovered were excessive. The facts show that a corporation under which defendant claims title, built the side track in question across this lot with the assent of the plaintiff, and paid the plaintiff rent for a portion of the time the same was occupied by such corporation; that such corporation, after paying such rent, continued to occupy said lot in the same way, with the assent of the plaintiff, until that, with the rest of its railroad, passed to the possession of the defendant under a foreclosure sale; and that after the defendant took possession it continued to occupy the lot in the same way that the old corporation occupied it, giving no notice to the plaintiff that it in any way questioned his right to the property, or that it claimed to hold the possession of the lot in hostility to the plaintiff’s right.
The fact that the plaintiff finally commenced proceedings against the defendant to compel it to pay for the lot, cannot prejudice his right to recover for use and occupation up to that time.. The tenancy was not for any definite period, and the plaintiff had the right to terminate the same, and either compel the defendant to take the same permanently or surrender the possession. Those proceedings resulted in the surrender of the possession by the defendant to the plaintiff; but such .surrender of possession, is certainly no defense to the action for use and occupation during the time the possession of the defendant continued.
Although, under the evidence, we are of the opinion that the jury was quite liberal in the assessment of damages, yet, as there was evidence tending to show that the value of the use of the premises was as much and more than the sum found by them, and as the circuit judge refused to set aside the verdict for that reason, it must stand.
By the Court.— The judgment of the circuit court is affirmed.