Hahn v. Keith

174 N.W. 551, 170 Wis. 524, 1920 Wisc. LEXIS 7

• Court: Wisconsin Supreme Court
• Decided: February 10, 1920
• Status: Published

Opinions

The following opinion was filed November 6, 1919:

Vinje, J.

Unquestionably plaintiff’s initial possession was permissive and not adverse, but permissive possession may ripen into an adverse one by declarations or acts, or both. 2 Corp. Jur. p. 124, §§ 210, 133, and 228; Bartlett v. Secor, 56 Wis. 520, 14 N. W. 714; Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. And continuous and exclusive-possession of land for over, twenty years raises the presumption that possession is adverse and throws the burden of proof upon the true owner to show that it was permissive. Bartlett v. Secor, supra; Meyer v. Hope, supra. There may also be an ouster of cotenants by adverse possession. 1 Ruling Case Law, 743.

In this case the evidence is practically undisputed, and the question is whether the finding of the trial court that plaintiff had gained title by adverse possession is so clearly wrong as not to be a permissible inference from all the evidence. If it is a permissible inference we ought not to disturb it. Meyer v. Hope, 101 Wis. 123, 77 N. W. 720. It is argued by defendants that in making its findings of facts the trial court overlooked the rule that as cotenants actual notice of adverse possession must be brought home to them and that the evidence fails to establish such notice. It is true that no actual notice by declaration is shown, but actual notice may be given by act's as well as by declarations. And so, ■ also, the best evidence of ouster is the exclusive, actual possession of the one claiming to hold adversely. 1 Ruling Case Law, 702. Here plaintiff was in possession of the land for nearly fifty years, rendering an account therefor to no one. He was in the exclusive, notorious possession of it for some thirty years previous to the commencement of the action, to thé knowledge of the defendants, treating it in every respect as his own. He made valuable improvements upon it, paid the taxes, and used the proceeds of the crops as his own. Since their father or grandfather died they never questioned the right of plaintiff to so occupy and use the farm, and never asked for any accounting till this action was brought. From such admitted facts it seems to us the trial court was justified in inferring that plaintiff’s possession was adverse, to the knowledge of the defendants, and that their explanation of the reason why they permitted him to occupy the 'farm did not satisfactorily rebut the presumption arising from his long-continued open, notorious, and exclusive possession that it was adverse. This subject is quite fully treated in Meyer v. Hope, 101 Wis. 123, 77 N. W. 720, and in the Wisconsin cases therein cited, and will not therefore be rediscussed here. Suffice it to say that we cannot set aside the trial court’s finding of fact as to adverse possession.

Since the statute of limitations began to run against thé' mother of George Logan, a minor defendant, it also began to run against him. Swearingen v. Robertson, 39 Wis. 462. But of course such a rule does not apply to redemption by minors from tax sales, because sec. 1166, Stats. 1917, gives them one year' after reaching majority within which to redeem. Karr v. Washburn, 56 Wis. 303, 14 N. W. 189; Carry v. Shea, 144 Wis. 135, 137, 128 N. W. 892.

By the Court. — Judgment affirmed.