Meyers v. Wisconsin Central Railway Co.

Wisconsin Supreme Court

Meyers v. Wisconsin Central Railway Co.

112 N.W. 673, 132 Wis. 401, 1907 Wisc. LEXIS 147

DecidedJune 20, 1907

StatusPublished

This text of 112 N.W. 673 (Meyers v. Wisconsin Central Railway Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Meyers v. Wisconsin Central Railway Co., 112 N.W. 673, 132 Wis. 401, 1907 Wisc. LEXIS 147 (Wis. 1907).

Pincite

Opinion

Winslow, J.

It is a familiar principle in the law of ejectment that a plaintiff must recover, if he recover at all, by virtue of the strength of his own title and not by virtue of the weakness of the defendant’s title. Therefore the first inquiry logically is whether the plaintiffs have shown title to the disputed parcels. This question involves primarily the construction of the deeds from Boter under which the plaint[407]*407iff» claim. If these deeds do not, when properly construed, convey to the plaintiffs any part of the disputed parcels, then they can have no recovery, notwithstanding the defendant’s title may not he good. It will he observed hy reference to the statement of facts that when Abhot conveyed to Maguire in 1883, and when Maguire conveyed to Roter in 1885, the western boundary of the land conveyed was described in the deeds as the easterly boundary of the right of way of the Wisconsin Central Railroad, but that, when Roter conveyed to- the plaintiffs in 1897 and 1899, the western boundary of the lands conveyed was described as “the right of way of the Wisconsin Central Railroad as now located and operated.” In view of the facts as to the occupation and use of the lands soon to be stated, the change in the description of the western boundary is very significant. Irrespective of any such facts, however, it is unquestionable that there is a very material difference between the two grants. The earlier grants undoubtedly extended to the east line of the land to which the railroad company had previously acquired title for right-of-way purposes, regardless of the question of occupation or use, but the later, deeds, with equal clearness, limit the grants to the east line of land which was at that time located and actually operated as a right of way. They call for a boundary line which cannot be determined by courses and distances, but must be determined by proof of extrinsic facts, namely, use and occupation for right-of-way purposes, whether under good or bad title. This is not an ambiguity in the deed, but simply a call in the deed like a tree or the bank of a river, which must be located by examination of the land itself. When the place is found the boundary of the land conveyed is also found. The testimony must therefore be examined to see whether it shows that a definitely bounded strip of land was located and operated by the defendant as a right of way at the time the plaintiffs’ deeds were made, and, if so, where the east line of that land was situated. The testimony is not en- [408]*408. tirely harmonious in details, biit the essential facts are not in dispute nor uncertain.

The village of Abbotsford originally came into existence by reason of the building of the defendant’s railroad and the ■ establishment of a railroad station. The original grant of a right of' way in 1819 was but seventy-five feet in width on each side of the center line. When Mr. Abbot, who was the land commissioner of the railway company at the time, platted the village in 1880, he seemed to consider that the right of way on the east side of the center line was 150 feet in width— at least it is so indicated on his plat. In 1883 the railway company caused a large map of its right of way and grounds ■ in Abbotsford to be made, upon which the right of way on the ■east side of the center line was represented as 150 feet in width. This claim does not affect plaintiffs, as they were not informed of it, but it throws some light upon the subsequent acts of the railroad company. When Maguire received his deeds in 1882 and 1883 there were apparently no fences nor any clearly defined lines of occupation. He built his store largely upon the southerly “disputed parcel” and within the • 150-foot line, but this was burned down in 1885. When Roter rebuilt in 1886 he changed the location of the store to the east, and built entirely upon the parcel marked “Meyers & Chase,” except that a very small part of the southwest corner extended a foot and a half over the line. Roter testifies that he was told that the line was where the new store was built, and even then he got a few inches further west than he intended. He also testifies that he had an icehouse just north of his new store and on the 150-foot line and a woodshed still further north, and that in 1892 he built a board fence nearly on the 150-foot line between the two buildings, and that he continued the fence around the north and east sides of his premises, thus practically inclosing the two parcels marked “Young” and “Meyers & Chase” on the map, and that he placed the fence upon the 150-foot line because he [409]*409supposed that was the line o-f the right of way. At this time the plaintiff Meyers worked for Eoter and knew of the building of the fence. Eoter further testifies that at some time after the building of the new store (the exact date not being given) the depot agent of defendant came to him and claimed all the land up to the 150-foot line, and in accordance with this claim he moved off an old shed and also some old.boxes which he had piled there. This apparently was in the year 1894. After this no part of the 150-foot strip in the rear of either the Young property or the adjoining Meyers and Ohase property was occupied by any buildings. It lay open and was sometimes used to burn rubbish upon, and could be driven into from Spruce street on the south. The railroad company erected a new freight house and platform and icehouse in 1889 or 1890, as indicated on the map, and have since maintained them there. As will be seen, they are largely located on the east half of the 150-foot strip, a little north of the disputed tracts. After the building of these buildings all who wished to get freight from the freight house by team crossed the disputed parcels upon the driveway marked on the map. Eoter used this driveway to get to the freight depot, and the plaintiffs Meyers and Ohase have also used it, but all others who wished to get to the freight depot used it in common and without obj ection.

Prior to the building of the new freight house a number of side tracks had been constructed on the east side of the main track, running north from the freight house for several blocks, and one of these side tracks was for a long distance wholly on the east seventy-five feet of the 150-foot strip. Along the east side of this track and on the east seventy-five feet, opposite block. E on the map, a number of warehouses were built by permission or under leases from the company during the years immediately following the building of the freight house. There is some testimony that the railroad company piled ties and telegraph poles at times on the disputed parcels, but this [410]*410is denied by other witnesses. The plaintiffs did not use it except to pass over when driving to the freight depot or to burn rubbish upon. In January, 1899, the railroad company presented to Meyers and Chase a lease of the small corner of the 150-foot strip occupied by their store, and Meyers signed the same without objection.

In view of the facts thus appearing relating to the condition and use of the disputed parcels of land at the time of and long prior to the time of the execution of the plaintiffs’ deeds, there seems no doubt that the whole 150-foot strip was then occupied by the defendant as a part of its right of way, and consequently that the plaintiffs’ deeds do not include and were not intended to include any portion of such strip.

In this connection the allegations of the complaints in both actions are very significant and well-nigh controlling.

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Winslow, J.

It is a familiar principle in the law of ejectment that a plaintiff must recover, if he recover at all, by virtue of the strength of his own title and not by virtue of the weakness of the defendant’s title. Therefore the first inquiry logically is whether the plaintiffs have shown title to the disputed parcels. This question involves primarily the construction of the deeds from Boter under which the plaint[407]*407iff» claim. If these deeds do not, when properly construed, convey to the plaintiffs any part of the disputed parcels, then they can have no recovery, notwithstanding the defendant’s title may not he good. It will he observed hy reference to the statement of facts that when Abhot conveyed to Maguire in 1883, and when Maguire conveyed to Roter in 1885, the western boundary of the land conveyed was described in the deeds as the easterly boundary of the right of way of the Wisconsin Central Railroad, but that, when Roter conveyed to- the plaintiffs in 1897 and 1899, the western boundary of the lands conveyed was described as “the right of way of the Wisconsin Central Railroad as now located and operated.” In view of the facts as to the occupation and use of the lands soon to be stated, the change in the description of the western boundary is very significant. Irrespective of any such facts, however, it is unquestionable that there is a very material difference between the two grants. The earlier grants undoubtedly extended to the east line of the land to which the railroad company had previously acquired title for right-of-way purposes, regardless of the question of occupation or use, but the later, deeds, with equal clearness, limit the grants to the east line of land which was at that time located and actually operated as a right of way. They call for a boundary line which cannot be determined by courses and distances, but must be determined by proof of extrinsic facts, namely, use and occupation for right-of-way purposes, whether under good or bad title. This is not an ambiguity in the deed, but simply a call in the deed like a tree or the bank of a river, which must be located by examination of the land itself. When the place is found the boundary of the land conveyed is also found. The testimony must therefore be examined to see whether it shows that a definitely bounded strip of land was located and operated by the defendant as a right of way at the time the plaintiffs’ deeds were made, and, if so, where the east line of that land was situated. The testimony is not en- [408]*408. tirely harmonious in details, biit the essential facts are not in dispute nor uncertain.

The village of Abbotsford originally came into existence by reason of the building of the defendant’s railroad and the ■ establishment of a railroad station. The original grant of a right of' way in 1819 was but seventy-five feet in width on each side of the center line. When Mr. Abbot, who was the land commissioner of the railway company at the time, platted the village in 1880, he seemed to consider that the right of way on the east side of the center line was 150 feet in width— at least it is so indicated on his plat. In 1883 the railway company caused a large map of its right of way and grounds ■ in Abbotsford to be made, upon which the right of way on the ■east side of the center line was represented as 150 feet in width. This claim does not affect plaintiffs, as they were not informed of it, but it throws some light upon the subsequent acts of the railroad company. When Maguire received his deeds in 1882 and 1883 there were apparently no fences nor any clearly defined lines of occupation. He built his store largely upon the southerly “disputed parcel” and within the • 150-foot line, but this was burned down in 1885. When Roter rebuilt in 1886 he changed the location of the store to the east, and built entirely upon the parcel marked “Meyers & Chase,” except that a very small part of the southwest corner extended a foot and a half over the line. Roter testifies that he was told that the line was where the new store was built, and even then he got a few inches further west than he intended. He also testifies that he had an icehouse just north of his new store and on the 150-foot line and a woodshed still further north, and that in 1892 he built a board fence nearly on the 150-foot line between the two buildings, and that he continued the fence around the north and east sides of his premises, thus practically inclosing the two parcels marked “Young” and “Meyers & Chase” on the map, and that he placed the fence upon the 150-foot line because he [409]*409supposed that was the line o-f the right of way. At this time the plaintiff Meyers worked for Eoter and knew of the building of the fence. Eoter further testifies that at some time after the building of the new store (the exact date not being given) the depot agent of defendant came to him and claimed all the land up to the 150-foot line, and in accordance with this claim he moved off an old shed and also some old.boxes which he had piled there. This apparently was in the year 1894. After this no part of the 150-foot strip in the rear of either the Young property or the adjoining Meyers and Ohase property was occupied by any buildings. It lay open and was sometimes used to burn rubbish upon, and could be driven into from Spruce street on the south. The railroad company erected a new freight house and platform and icehouse in 1889 or 1890, as indicated on the map, and have since maintained them there. As will be seen, they are largely located on the east half of the 150-foot strip, a little north of the disputed tracts. After the building of these buildings all who wished to get freight from the freight house by team crossed the disputed parcels upon the driveway marked on the map. Eoter used this driveway to get to the freight depot, and the plaintiffs Meyers and Ohase have also used it, but all others who wished to get to the freight depot used it in common and without obj ection.

Prior to the building of the new freight house a number of side tracks had been constructed on the east side of the main track, running north from the freight house for several blocks, and one of these side tracks was for a long distance wholly on the east seventy-five feet of the 150-foot strip. Along the east side of this track and on the east seventy-five feet, opposite block. E on the map, a number of warehouses were built by permission or under leases from the company during the years immediately following the building of the freight house. There is some testimony that the railroad company piled ties and telegraph poles at times on the disputed parcels, but this [410]*410is denied by other witnesses. The plaintiffs did not use it except to pass over when driving to the freight depot or to burn rubbish upon. In January, 1899, the railroad company presented to Meyers and Chase a lease of the small corner of the 150-foot strip occupied by their store, and Meyers signed the same without objection.

In view of the facts thus appearing relating to the condition and use of the disputed parcels of land at the time of and long prior to the time of the execution of the plaintiffs’ deeds, there seems no doubt that the whole 150-foot strip was then occupied by the defendant as a part of its right of way, and consequently that the plaintiffs’ deeds do not include and were not intended to include any portion of such strip.

In this connection the allegations of the complaints in both actions are very significant and well-nigh controlling. These complaints were verified October 10, 1903, and they both allege that the defendant has unlawfully withheld possession of the premises in dispute for the past five years and more. This allegation takes the possession of the railroad company back to October, 1898, almost to the time of the execution of Roter’s deed to Chase and prior to the execution of Roter’s deed to Young. There is no claim that the situation as to possession was in any respect different in September, 1897, from what it was in October, 1898.

Our conclusions are that the evidence shows without serious question that the parcels in dispute were within the defendant’s right of way as located and operated at the time the plaintiffs’ deeds were made, and hence that the plaintiffs were not entitled to judgment.

By the Court. — Judgment in both cases reversed, and actions remanded with directions to render judgment in each case for the defendant dismissing the complaint.

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Bluebook (online)

112 N.W. 673, 132 Wis. 401, 1907 Wisc. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyers-v-wisconsin-central-railway-co-wis-1907.