Carroll v. Manierre

135 N.W. 837, 149 Wis. 409, 1912 Wisc. LEXIS 155

• Court: Wisconsin Supreme Court
• Decided: April 23, 1912
• Status: Published

Opinion

KeewiN, J.

It appears from tbe evidence that prior to 1904 plaintiff’s father owned sixty feet front on Earwell avenue in tbe city of Milwaukee; that tbe yard was divided by a north and south fence near tbe center into a front and back yard, tbe rear being used as back yard and garden and inclosed by fences. On tbe north thirty feet of said sixty feet stands a brick dwelling bouse. In 1904 plaintiff’s father transferred tbe south thirty feet to him. Plaintiff did not record bis deed until about tbe time of tbe commencement of this action. At tbe time of tbe alleged trespass tbe defendant held possession of tbe dwelling on tbe north thirty feet under a lease prepared by tbe plaintiff on behalf of bis father, which described tbe property leased as follows:

“That tbe said lessor does hereby lease, demise, and let unto the said lessee, tbe following described premises, lying and being in the First ward of the city and county of Milwaukee and state of Wisconsin, to wit: Two-story brick veneer dwelling house, known as No. 185 Earwell avenue, attic and basement and the premises thereof and appurtenances pertaining thereto, being located on the north thirty feet of the aforesaid premises, in the First ward of the city of Milwaukee.”

The lease was dated May, 1909, and was for two years. There is evidence that plaintiff in drawing said lease did not intend to include the south thirty feet; that he did not know there was a garden on the south thirty feet during 1908; that he could not say whether the back half of his lot was used by persons who lived on the north thirty feet in 1907 and 1908; that he never had anything to do with defendant. As will be seen from the statement of the case, the court below found the facts in favor of plaintiff.

The appellant contends that the finding£ of fact and conclusions of law do not cover two propositions of law raised in the case, namely, (1) whether the lease in question purported to grant to defendant a term in the lands owned by plaintiff; and (2) whether the acts of plaintiff in withholding his deed from record and changing the appearance of his land and assisting his father in leasing his father’s land estop plaintiff from' asserting title to his own land.

It is true the findings are quite general, but it does not appear that any more specific findings were asked, and we think they "dispose of all the issues in the case. 'The court is also of opinion that the findings of fact are supported by the evidence and warrant the conclusions of law.

It is quite true that the description of the premises leased to defendant is somewhat ambiguous, but in connection with other evidence the court is of opinion, as the court below held in its written opinion in the case, that the leased premises were intended by the parties to be limited to the north thirty feet. This conclusion is further supported by the fact that the lessor could not include the south thirty feet, which he did not own, in his lease to defendant without the consent of the plaintiff. But it is argued that the plaintiff is estopped from asserting his title to the land against the defendant. Here again the findings and conclusions of the court below are against the appellant. Indeed, we are of opinion that the evidence is not sufficient to support findings of estoppel against plaintiff.

Several cases are cited by appellant which we have examined but do not think they reach the situation here.

People ex rel. Murphy v. Gedney, 10 Hun, 151, is a case where an alleyway was used in connection with the house leased and was pointed out at the time the lease was made as a part of the demised premises, and it was held that it passed under the language “house number 324 East Eifty-eighth street.”

In Ammidown v. Ball, 8 Allen, 293, the deed described a lot and then followed after description of the lot, “together with all the dwelling house and building, with the appurtenances, situate thereon or thereto belonging.” It will be observed that this deed not only conveys the land, the dwelling house and building, with the appurtenances, situate thereon, but also adds the words “or thereto belonging,” which latter words strongly indicate an intention to convey something beyond the land and buildings thereon, and was therefore held to convey a small lot of land adjoining the granted premises, habitually used in connection with the dwelling house, and reasonably necessary to be held in connection with it.

In Riddle v. Littlefield, 53 N. H. 503, a store was leased, and it was held that the lessee acquired the right to use the outside walls.

Scheel v. Alhambra M. Co. 79 Fed. 821, is where the grant of a tunnel right to mine, together with appurtenances, covered the right to dump the waste rock at the mouth on the land owned by the grantor.

Other cases cited from foreign jurisdictions are no stronger in favor of appellant than those above referred to. Nor do tbe Wisconsin cases (Bracken v. Preston, 1 Pin. 584; Warner v. Fountain, 28 Wis. 405; and Huebschmann v. McHenry, 29 Wis. 655) reach tbe question bere.

Tbe plaintiff never having leased tbe south thirty feet, and being tbe owner, was in constructive possession of it, and entitled to maintain tbe action against tbe defendant upon tbe ■established facts.

Tbe court is of opinion that the judgment below was right and must be affirmed.

By the Court. — Tbe judgment is affirmed.