Illinois Steel Co. v. Budzisz

90 N.W. 1019, 115 Wis. 68, 1902 Wisc. LEXIS 189

• Court: Wisconsin Supreme Court
• Decided: September 23, 1902
• Status: Published

Opinion

The following opinion was filed June 19, 1902:

Maesiiall, J.

We understand that by the answers to •questions 2 and 3 of the special verdict the jury decided that, when the patent from the United States under which appellant claims was made, the locus in quo was part of the1 bed of Lake Michigan and was on the lake side of the meander line thereof. In no other way do the two findings harmonize. One is to the effect that the property in dispute, at the date ■of the patent, was a part of the bed of Lake Michigan or some arm or bayou thereof. That is, as we take it, that it was part of the bed of the lake proper, or of some bay or other basin or channel forming really a part thereof in that it was .supplied by water therefrom. There was but one meandered lake in the vicinity of the premises ip controversy. That was Lake Michigan. When the jury said by one finding that ■such premises were covered by the waters of Lake Michigan or. of some aim or bayou thereof, and by another that they were within the meandered line of a lake, if they decided anything with sufficient definiteness1 to form a legitimate basis for the application of legal principles, it was that the locus in quo was within the meander line of Lake Michigan. How they reached that conclusion we are unable to- perceive. There appears to be no dispute in the evidence, that when the .government survey was made and the lands patented there ■was a low, sandy ridge, wholly separating Milwaukee river from Lake Michigan, except when the water of the latter was cast over such ridge or caused to intrude into the mouth ■of the river by high winds from an easterly direction; that ■such ridge extended south to the mouth of the river, a point ■.some 120' rods from the property in dispute; and that the meander line of the lake then, was and ever since has been •on tifie east side of the ridge and not at any point nearer to ■such property than, about 700 feet. That unquestionably puts the disputed premises outside the meander line of Lake Michigan, and does not leave them within the meander line of any other body of water. The meander line of Milwaukee river was west of the property in dispute several hundred feet. The territory between it and the meander line east of the sandy ridge was run out by the government surveyors .as land, not as a lake or pond. There is no evidence that the two lines were intended for, or were in fact, opposite boundaries of a lake. If there was a body of water there in fact, having the characteristics of a lake, it certainly was not a meandered body. It follows that findings 2 and 3 are without any support whatever.

If we eliminate from the verdict the element as to the locus in quo being within a meandered body of water, and treat it simply as a verdict to the effect that the premises were in the beginning a part of the bed of a body of water having the characteristics of a lake, though not recognized as such by public authority, we are still unable to find evidence to warrant it. The region, as before indicated, is within territory surveyed by the United States and platted as land. At the time of the survey the whole of Jones Island, so called, the region between the bayou — which was wholly on the west side of and separated from the lake by the sandy ridge spoken of, and was a mere by-pass for water from the river from a point a little above the east and west center line of section 33 to a point where the river crosses the east and west eighth line of the south half of the section — and the east meander line of Milwaukee river, was run out as a part of government lot 2 of -said section. The indications are unmistakable that it did not appear to the surveyors, at the time their work was ■done, to be covered by a permanent body of water, but was •a marsh. There is no direct evidence in the record as to the conditions then existing, or which existed for some ten years thereafter — during which time the evidence is undisputed that the water raised a foot or two — except the work of the ■ government surveyors and the evidence of Daniel Wells, Jr. Respondent produced a large number of witnesses as to the-condition of the island, respecting water thereon, from 1845 down to the time of the trial, but no testimony whatever respecting prior conditions. They may have been very different in 1835 from what they were in 1845 and later. The work of the government surveyors, with the evidence of Mr. Wells- and common knowledge, we may say, that there have been great variations in the level of Lake Michigan in the past sixty years, indicates almost to a moral certainty that in 1835 Jones Island was a marsh and not a lake in any sense. Mr. Wells testified that the water was one or two feet lower in 1835 than it was some time thereafter; that it was the lowest in 1835 that he had ever seen it. He said that he explored' the region with a view of becoming part owner thereof, and that such purpose was carried out by his purchasing some-twenty or thirty acres of fractional section 33, which was about seventy-seven acres in- extent; that between the west side of the sandy ridge forming the shore of the lake, going-north from the mouth of the river, there Was marsh land, with-some parts thereof above water and some portions submerged; that it was called a marsh; that it was bounded on the westerly side by the easterly line of the river. He spoke of a map-which was offered in evidence, indicating that it correctly exhibited the conditions existing in 1836. That shows the-region in question, then, to- have been neither river nor lake,, but distinctively a marsh. The fact that it was- surveyed amL sold as land, though not conclusive of its character by any means, is prima facie proof on the point, and, standing alone,, should prevail till overcome by some clear evidence — something much better than mere inferences from the testimony of witnesses as to conditions ten years later not inconsistent' with those the surveyors appear to have found, witnesses who differ between themselves and speak from their reeollection of conditions which existed forty or fifty years ago. We fail to find any such clear evidence in the record, while the prima, facie case, spoken of, is supported by the evidence of Mr. Wells and by quite persuasive circumstances', particularly the notorious changing character of the level of the lake.

There is another view of the evidence which, in our judgment, leaves the findings of the jury, above discussed, without support. Giving all the effect we reasonably can. to the evidence as to the condition of Jones Island since 1845, there is no controversy but that it consists of flats, connected along substantially the whole of the westerly side thereof with the bed of Milwaukee river, such as are ordinarily found along most rivers. The river itself, when the government survey was made, was well defined through the entire region. It had banks, a bed, and a movement of water uniformly toward the lake. The island, so called, was wholly outside thereof. The territory within the banks of the river, and that constituting the marsh, were not submerged by a continuous sheet of water so that the identity of the stream was lost therein, giving to the territory the characteristics of a lake, as is sometimes the ease. The stream, throughout its whole course, was not only well defined at the dividing line between it and the flat lands along its bank, but such bank was, by proper authority, distinctly marked in the field by meander posts at the time of the government survey, and shortly thereafter the limits of the river were carefully determined for the purposes of navigation. To say that swamp lands, which exist here and there outside the shore lines, proper, of a river, the identity of the stream being clear, constitute lakes, merely because they are covered by water in many or most places, would be without precedent and unsupported by authority. Probably one of the most extreme cases in the books where, territory, having the characteristics of a swamp and being so covered by Water as to render the .same unfit for anything but fishing and hunting, has been held to be a lake, is Ne-peenauk Club v. Wilson, 96 Wis. 290, 71 N. W. 661. The situation of Mud Lake, the one there in controversy, differed from that in question, first, in that there was no stream that could b© properly called a river; second, in that it was meandered by the government and recognized as a lake, the bed being conceded by the United States to be vested in the state. If either of those elements had been absent there, as they were here, the decision might have been very different. If both of such elements had been absent there, as they were here, it is difficult to see how the conclusion arrived at could have been reached. To lay down a rule permitting the state, in its trust capacity, barring loss by delay, to claim the marsh and swamp lands1 along our rivers as beds of lakes, where it may be shown that in the beginning they were more or less covered by water, would be without authority and would lead to most disastrous results.

The evidence on the subject last above discussed was very different on the former appeal from what it is now. We were then unable to satisfactorily determine whether, when the land was patented, there was a well-defined separation between Milwaukee river and Lake Michigan, northerly from the southerly extremity of section 33, leaving Jones Island in the river basin instead of in that of Lake Michigan. Now that is plain. The river was then, as it ever since has been, entirely separated from Lake Michigan. Down to a point some 120 rods south of the disputed premises; throughout its entire course from the north line of section 33 till it entered the lake, it had banks^ a bed, and a current. It was a river, strictly so called, and there is no dispute about it. The witnesses on both sides1 testified in harmony on that point. Re-tween it and the lake, in the southerly half of the section, there was, first, the marshy region called Jones Island, including the premises in controversy, then a narrow, shallow ■channel called the bayou, having, as before indicated, no connection whatever with Lake Michigan., East of that was the unbroken, sandy ridge testified to by all the witnesses upon both sides, forming the divide between the basin of the river .and that of the lake. The shore line of the stream on the west side of the marsh indicated with reasonable clearness where the marsh ended and the river commenced, and it was marked accordingly by the government surveyors by proper meander posts- at significant points. The same condition, as regards low, marshy or swamp1 lands, existed on the west bank of the river as on the east bank. No one ever supposed that such lands were included in the bed of the river or in the bed of a lake. The lands upon the west side were surveyed and sold by the government at an early day, and have been held and improved as private property for upwards of half a century. No doubt a river may so broaden out as to lose its character as such and become a lake, but nothing of that kind can reasonably be claimed here. The water’s edge of the stream, forming the boundary of a mere marsh or swampy region along its banks, the stream having the legal and physical characteristics of a river and such region those of a lake, the bed being surveyed by public authority and sold as land, would be an unheard of and we should say an impossible situation. That such a marshy region cannot be reasonably considered an independent permanent body of water, though in. fact covered by water in many places, and as having the legal and physical characteristics of a lake, seems too clear for argument. It has always been properly designated as marsh or swamp land, according to circumstances.

Eor all the reasons given we must hold that the answers to questions 2 and 3 of the special verdict are contrary to the evidence.

Since the premises in controversy were subject to private ownership at the origin of the paper title upon which appellant relies, the judgment appealed from is wrong’ unless that title was cut off by twenty years’ continuous adverse possession by respondent and Jaeob Muza, under whom he claims. If the appeal were to turn, necessarily, on whether Muza dis-seised tbe true owner, it is by no means clear1 that support for the judgment appealed from could be found in the record. The essential elements of adverse possession cannot properly be found to exist except upon testimony of a positive and satisfactory character. That does not mean that snch elements-must all he established by direct evidence, but that they must be established in a clear and satisfactory manner by evidence,, direct or circumstantial, of'a positive, unequivocal character.. Meyer v. Hope, 101 Wis. 123, 17 N. W. 720. It is not consistent with that to find snch elements from mere general statements of witnesses, not based on facte clearly warrant ing them, nor in the-face of facte clearly established which are so inconsistent with adverse possession as to render it altogether improbable. Mnza testified that the possession he had of the island was just the same in one part as in another; that his claim was no different as- to one part thereof than as to any other part. In the light of that testimony, if there were many parts of the island over which he did not exercise any control whatever, it would seem that respondent’s claim of adverse possession wholly fails. lie relies upon evidence to the effect that Muza used all the island as a true' owuer might reasonably have done, devoting the same to- such purposes as it was adapted to'; that he used the same for a hunting and fishing ground; that he prohibited others from coming thereon; that he improved the island by building dikes and filling np low places, and, generally, that he assumed dominion over it. Muza so testified, but upon cross-examination he was unable to testify definitely as. to habitually prohibiting persons from coming upon the island, or that any one in particular, other than respondent, located thereon by Ms permission. He admitted, as we read his evidence, that a large number of persons settled thereon, without ask,ing his permission to do so, or his objecting thereto; that they went there and located, treating the territory as no man’s land, without his giving out any indication to them that he considered their conduct an invasion of his rights. A long, searching cross-examination failed to show, as before indicated, that any person in particular, except respondent, out of over 200 persons who located on the1 island, did so by first obtaining his permission. None of them paid him anything, or treated him as proprietor, in any of the ordinary ways of dealing with the owner of property, so far as we can discover, lie 'said they helped him improve the island and that he allowed them to locate thereon with the understanding that they should so aid him, but it nowhere appears that he treated the island, in either its improved or unimproved state, as his property. A number of settlers were sworn, who testified that they went upon the island without supposing that Muza had any better right than they had to go there; that they did not know of him in tire matter. It seems, looking at the whole evidence, that it is established beyond reasonable controversy that the persons who settled upon the island did so generally without reference to Muza, and remained there without recognizing that he had any property right in the island, or right to control it. That is so inconsistent with the theory that he exercised the acts of a rightful owner over the territory in dispute — that he claimed it as his property and dealt with it as such — ns to render it highly improbable, if not contrary to all reasonable probabilities.

If we could pass the infirmity last discussed, so as to reach the conclusion that the true owner was disseised by Muza and that such disseisin continued down to the time blocks 194 and 195 were surveyed and staked out by authority of such owner in 1816, the houses thereon being then numbered and leases obtained from the occupants thereof, such circumstances would stand as an insurmountable barrier to respondents’ right to recover. If an owner of land be dis-seised thereof by another, so as to start a period of adverse possession in favor of the latter, any notorious entry thereon by such owner or his agent by his direction, for the purpose of dispossessing the adverse occupant, operates to interrupt the running of the statute. It terminates the period of adverse occupancy absolutely and for all purposes. The statute can be set running again only by a fresh disseisin, which will constitute merely the commencement of another period of twenty years, regardless of the length of time the interruption of the adverse occupancy continued. Anything that actually breaks the continuity of adverse possession of property renders it harmless as regards the title thereof, no matter what may subsequently occur. Johnston v. Fitzgeorge, 50 N. J. Law, 470, 14 Atl. 762; Bowen v. Guild, 130 Mass. 121; Pingrey, Real Prop. § 1195. Actual entry upon property by the true owner, of a mere casual character or by stealth, is not sufficient to break the continuity of a disseisin of him, nor is a re-entry sufficient which is not known to' the adverse occupant or characterized by acts from which knowledge on his part would reasonably be inferred. But there is no such infirmity in this ease. There is no question but that the entry of the true owner was made animo clamandi and that it was of the most public character. It was of such a character that if Muza, was exercising that control over Jones Island which he claims, he must in all reasonable probability have been informed thereof and of its purposes while the acts in respect thereto were in progress. They occupied a considerable length of time. A surveying party operated upon the ground for a sufficient length of time to accurately run out and mark in the field the boundaries of the blocks, thereafter, as before indicated, numbers were placed on the houses, and that was followed by an assertion of ownership to all the occupants of the houses, and by obtaining acknowledgments1 from them that their occupancy was by permission of the true owner, such acknowledgments being in the form of leases. Tbe latter circumstance alone was amply sufficient to interrupt any existing adverse occupancy of all the property, since no visible use was being made thereof — except of those parts occupied by the houses — which could be physically disputed. Russell v. Erwin’s Adm’r, 38 Ala. 44; Thompson v. Pioche, 44 Cal. 508; Haynes v. Boardman, 119 Mass. 414. In view of the character of the premises, no infirmity whatever is perceived in the entry as regards its effective character to break any existing disseisin of the true owner. It was good as a matter of law.

The most essential element in such a case is the tramÁmus clamanM ’’ and that may be inferred from circumstances. It is not necessary that it should be made manifest by any formal declaration to anybody. The necessary purpose being clear, if the element of notoriety is sufficient to bring the situation home to the attention of the adverse occupant, if he is paying such heed to his possession as a person under the circumstances would ordinarily pay, that is sufficient. All those elements were so fully satisfied in this ease that the court should have decided as a matter of law that any adverse occupancy existing prior to the assertion of the ownership by the true owner in 1876 was effectually interrupted thereby, and have looked for a fresh disseisin more than twenty years prior to the commencement of this action; and in the absence of any evidence tending to clearly establish such later dis-seisin, should have taken the case from the jury in favor of appellant.

We have searched the evidence in vain for some proof of a disseisin of the title under which appellant claims subsequent to the occurrences above discussed and more than twenty years before this action was commenced. If the result were otherwise than we have found it to be on that point, there would still be an insurmountable difficulty which would prevent respondents from recovering in this litigation. In 1887, appellant’s predecessor in title caused that part of Jones. Island owned by it, including the disputed premises, to be explored, and each of the settlers thereon to be notified ■of the true state of the-title, and required to recognize the same by taking a lease of his holding, most of whom complied with such requirement. The fact, if it be a fact, that some of them did not understand the purpose of the paper they signed, does not militate against the circumstances stated being effective to interrupt the adverse occupancy existing as to the vacant part of the territory. Their ignorance may be material in litigation between the plaintiff and them. No case of 'that kind is before us. The entry upon the disputed territory was so long continued and was characterized by such acts that it must have indicated to Muza the purpose thereof. It is considered that, as to that part of the island not occupied by settlers, tire circumstance of tire agent exploring the entire region, calling upon all persons located thereon, proclaiming to them the true state of the title, going upon the territory upon many occasions as a matter of right and as an owner would naturally go, and for the notorious purpose of asserting title thereto, was sufficient as a matter of law to interrupt the adverse occupancy by Muza if such occupancy existed. What will interrupt disseisin must necessarily vary with the character of tiro property involved, the same as what acts will constitute actual occupancy essential to adverse possession must so vary. There were no fences on the particular property in controversy to be thrown down, no buildings to take possession of, no physical situations created by Muza that could well be disturbed, indicating an intent to reclaim possession, except by doing just what was done. The premises not occupied by settlers being only open marsh or swamp land, and largely covered by water, all that the true owner could do, to indicate that he challenged the right of any hostile claimant, was to go upon the territory in the attitude of a true owner, demanding recognition by all wrongful occupants found thereon, continuing’ operations for such a length of time as to bring borne to tbe attention of all hostile claimants that their claims were defied and that an opportunity existed for them to seek vindication if they supposed such claims to be legitimate. Interference with adverse possession of prop--erty by going upon tbe same habitually, ignoring such possession, if the nature of the property will not readily admit of any other way of asserting title, and such way be continued for such length of time as to clearly manifest a purpose to re-enter, will break the continuity of the adverse occupancy and turn to naught all such prior possession. Tyler, Ejectment, 110. Our conclusions are that, if Muza was in the adverse occupancy of the premises in controversy in 1816, such occupancy was broken by a re-entry then made; and there is no satisfactory evidence of a fresh disseisin of the true owner more than twenty years before the commencement of this action. But if there was such evidence, the dis-seisin was again broken in 1881.

Counsel for appellant presented for consideration several assignments of error not covered by what has been said. But as the conclusions already reached render a new trial unnecessary, we will pass over such assignments. They moved tire court, upon the coming in of the verdict, to strike therefrom the answers which we have held to be clearly unsupported by any credible evidence, leaving only the findings that appellant, at the time of the commencement of the action, was the owner of the premises in dispute by title under a government patent, and that they were then possessed by respondent, and for judgment on the verdict as corrected and the undisputed ■evidence. The result of our conclusions is that such motion should have been granted. It follows that the judgment appealed from must be reversed and tbe cause remanded with directions to grant such motion.

By the Court. — So ordered.

A motion by tbe respondents for a rebearing was denied September 23, 1902.