Off v. Heinrichs

102 N.W. 904, 124 Wis. 440, 1905 Wisc. LEXIS 88

Opinion

KekwiN, J.

1. It is claimed by respondent that tbe complaint is not sufficient for want of proper description of the land in suit, and that from tbe description, together with the evidence adduced on the trial, it is impossible to determine tbe south boundary of tbe strip described. Tbe south boundary is designated as tbe north boundary of August Becker’s land. Tbe exact location of such boundary was in issue, and was claimed by appellants to be tbe line of the rail fence. Tbe line of tbe rail fence was established on the trial, and found by tbe court to be a line ten feet south at tbe west end and eighteen feet south at tbe east end of tbe north line of Becker’s tract according to courses and distances in deed from Severn to Becker. Tbe proof settled definitely tbe exact location of tbe strip in suit, and tbe court found in its first finding tbe land in question to be “a strip of land extending from Richards street on tbe west to Lake Michigan on the, east, said strip being about ten feet wide at tbe western end and eighteen feet wide at tbe eastern end, and lying between tbe fence built by tbe defendant in tbe year 1901 and a line south of said fence, on which line formerly stood a rail fence, and thereafter a board fence was built by August Loennecker and August Becker in or about tbe year 1815, and which said last-mentioned or southerly line is hereinafter called tbe ‘old fence line.’ ” Tbe fence on tbis “old fence line” existed in April, 1867, when tbe deed from Severn to Loennecker was executed, and which called for the Becker land as the south boundary of the Loennecker land, although the deed from Severn to Becker was not executed until October, 1867. The Becker tract and the Loennecker tract having been occupied by the respective owners up to this fence continuously from 1867 for upwards of twenty years, it is probable that the boundary referred to in the Loennecker deed was this fence line. Nys v. Biemeret, 44 Wis. 104. However, whether there was any uncertainty in the deed as. to the boundary between the tracts, there is no uncertainty after trial and the findings of the court as to the exact location of the land described in the complaint, nor can there be any difficulty in putting the appellants in possession. The object of a definite description is for the purpose of enlightening the defendant as to the particular land claimed and to furnish information sufficient to enable the sheriff to put the plaintiff in possession. Johnson v. Nevill, 65 N. C. 677. However particular a description may be, it often requires evidence outside of the written description to enable the sheriff to apply such description to the parcel of land intended, and for this purpose he may satisfy himself of the identity of the land by witnesses or on the representations of the plaintiff (Sedgwick & W. Trial of Title to Land, § 459), the important question being that the sheriff be able to put plaintiff in possession of the land in suit. We think the description of the land in the complaint and finding is sufficient. The only point of confusion concerning the description is the south boundary of the Loennecker tract. This boundary is established as the line of the rail fence, and the strip of land of which the respondent took possession, and which this suit was brought to recover, is definitely fixed in the finding, the southerly line thereof being located as the old fence line. A description is sufficient if, by the aid of a competent surveyor and persons knowing the monuments and boundaries mentioned in the complaint. the land can be found. Ayers v. Reidel, 84 Wis. 276, 54 N. W. 588. There will be no difficulty in locating the land mentioned in the complaint and finding in this action with such aid.

2. It is undisputed that by the courses and distances in the deeds from the common grantor, Severn, to Loennecker and Becker, respectively, in 1867, there remained a strip of land about twenty-five feet wide between the two tracts; but, following the calls in deed to Loennecker for the south boundary as the Becker land, the north boundary of the Becker tract becomes the south boundary of the Loennecker tract. The line between the two tracts at the time of the conveyance to Loennecker was indicated by the rail fence, which was built prior to 1867. The parties occupied'their respective lands on each side of this fence from 1867 to 1875, when they built a new fence upon the line of this rail fence, each building one half thereof, and thereafter continued to use and occupy their respective tracts up to this division fence. This use and occupation was continued by the respective parties and those claiming under them to 1891 uninterruptedly, and probably down to the time respondent took possession in 1901. The construction of the new fence in 1875 on the line of the old rail fence by the occupants on both sides shows that they must have then recognized this line as the division line, and very strongly tends to show that they so recognized it from the time of the execution of their respective deeds in 1867, and that the call in the Loennecker deed for Becker’s land as the south boundary referred to this rail fence as the boundary. Moreover, the deed to Loennecker, some months before the deed to Becker, which gives the south boundary as Becker’s land, must be deemed to refer to the rail fence then existing upon what was obviously understood to be the division line between the Becker and Loennecker tracts, and which thereafter continued to be recognized as the division line for a pe-riod of upwards of twenty years. Besides, the rail fence appeal's to be the division line most consistent with the conveyances to both parties, since the line given by courses and distances in deed to Becker brings the boundary line between his land and Loennecker’s about twenty-five feet south of the line given by courses and distances in the Loennecker deed, while the Loennecker deed calls for the Becker land as the south boundary. The north line of the Becker tract according to courses and distances given in deed is about twenty-five feet south of the south line of the Loennecker tract as given by courses and distances in deed to Loennecker, while the-deed to Becker calls for “a point, a corner of August Loen-necker’s land; thence by the same east twenty-five and eighty-hundredths (25.80) chains to low-water mark of Lake Michigan,” as north boundary, so that, by courses and distances given in both deeds, the boundary line is left uncertain. In this condition of the description the rail fence existing at the time of the execution of the deeds, and afterwards recognized as the division fence, was doubtless regarded as the south boundary of the Loennecker tract by the parties at the time of the execution of deed to Loennecker. Ayers v. Reidel, 84 Wis. 276, 54 N. W. 588; Nys v. Biemeret, 44 Wis. 104; Madison v. Mayers, 97 Wis. 399, 73 N. W. 43; Marsh v. Mitchell, 25 Wis. 706. But whatever may have been the-south boundary as given by the deed to Loennecker, it is considered that possession and occupancy of the land by the parties on both sides of the division line of the old rail fence uninterruptedly and without dispute for more than twenty years prior to 1901, when respondent took possession, establishes right and title in Loennecker and those claiming under him to the line of the old rail fence. The new fence built in 1875 continued as the division fence until 1894, when it practically went out of existence by decay, only posts or parts of posts remaining thereafter. Aside from the existence of the old fence in 1867, when the deeds were made, and the building of' the new fence in 1875 as the division line, and the acquios- cenee by all parties interested in the respective tracts thereafter in such line as the division line to 1891 and later, we also have the evidence of witnesses that the Loennecker tract was occupied and cultivated by Loennecker and those claiming under him to this division fence from 1868 or 1869, continuously and uninterruptedly, to 1891 and later. The occupation and cultivation of the Loennecker tract up to this fence is undisputed from 1875 to 1891, but it is claimed there is no evidence of use and occupation prior to 1875. Erom a careful examination of the record we are convinced that there is ample evidence, practically undisputed, that for twenty years prior to 1891 the Loenneckers used and occupied, under claim of right, uninterruptedly and without objection, the land described in the complaint! Upon well-settled principles, this use and occupation established the fact of adverse possession and a perfect title to the land in suit. Wilkins v. Nicolai, 99 Wis. 182, 74 N. W. 103; Nelson v. Jacobs, 99 Wis. 547, 75 N. W. 406; Wollman v. Ruehle, 104 Wis. 603, 80 N. W. 919; Bishop v. Bleyer, 105 Wis. 332, 81 N. W. 413; Batz v. Woerpel, 113 Wis. 442, 89 N. W. 516; Illinois 3. Co. v. Bilot, 109 Wis. 418, 84 N. W. 855, 85 N. W. 402. A perfect title having been acquired by adverse. possession prior to 1891, it is unnecessary to consider the argument of respondent’s counsel that the continuity of adverse possession was interrupted in 1891.

3. It is further claimed by respondent that even if it be conceded that adverse possession was acquired by the Loen-neckers prior to the sale to Gether in 1891, and that the recording of the Glen Owen plat did not amount to a recognition of Stanhope’s title, still the appellants are not entitled to recover, because Mrs. Loennecker’s title to the strip in question passed to Gether by the sale of 1891, which was consummated by deed given in 1892, and was not reconveyed to Mrs. Loennecker. It is undisputed that the Glen Owen plat did not extend to the south line of the Loennecker tract, be cause, standing upon tbe description by courses and distances in deeds from Severn to Loennecker and Becker, respectively, tbe south line of Glen Owen plat would be about twenty-five feet north of the north line of the Becker tract, leaving a strip of about twenty-five feet between the south line of Glen Owen plat as recorded and the north line of the Becker tract as described by courses and distances in deed from Severn to Becker. There is no evidence whatever of any title in either Stanhope or Becker to this strip, although, when Stanhope recorded his plat in January, 1892, he allowed it to lap over this twenty-five-foot strip, making the north line thereof the south line of Glen Owen plat'- Prior to this the Loenneckers had acquired a perfect title to this strip by adverse possession, and also to the strip in suit, the south line of which was the old line fence. It is probably true that title and possession to this strip passed by deed from Johanna Loennecker to Gether in' 1892, and that after this conveyance Johanna Loen-necker occupied as tenant of Gether. But it is also clear that the deed from Gether to Johanna Loennecker in 1895 conveyed title up to the old fence line. The deed, while it referred to the fact that the Loennecker property, or part of it, had been platted, distinctly gave the Becker property as the south boundary, and, the boundary between the Loen-necker tract and the Becker tract having been settled and established by adverse possession prior to that time, there can be no doubt but that the call in the deed for the Becker land as the south boundary conveyed all the interest of Gether to the old fence line. And it further appears that the Loen-neckers, after this conveyance from Gether, took possession and continued to occupy up to the old fence line until 1901, when respondent built his fence, so there can be no doubt but that the deed from Gether to Johanna Loennecker not only conveyed the strip in question, but it was so understood by the parties. The title and possession of Johanna Loennecker passed to appellants, and they were the owners and entitled to possession at the time of the entry by the respondent. It follows, therefore, that the judgment of the court below should he reversed.

By the Court.- — The judgment of the court below is reversed, and the cause remanded with directions to enter judgment for appellants in accordance with this opinion.