Reilly v. Howe

76 N.W. 1114, 101 Wis. 108, 1898 Wisc. LEXIS 288

• Court: Wisconsin Supreme Court
• Decided: November 1, 1898
• Status: Published

Opinion

WiNslow, J.

Undoubtedly this was a case where the title to land was in question. The complaint alleged "ownership and possession of certain lands by the plaintiff, and trespass thereon by the defendant. The answer contained a general denial, with allegations that the acts alleged to be trespasses were not on plaintiff’s land, but on defendant’s land, because the true line between the parties was south of the place where the alleged trespasses were committed. This-answer clearly raised the question of title to the land where the new fence ivas built. Ames v. Meehan, 63 Wis. 408. So the defendant’s motion to dismiss the action for lack of jurisdiction in the circuit court was properly overruled.

The plaintiff attempted to prove paper title to the N. of the N. E. of section 15, but failed. He did, however, prove, without dispute, that since November, 1S94, when the defendant built a fence on the line of the first survey, he (the plaintiff) had been in exclusive possession of all the-land south of that fence, and was so in possession in 1896,. when the defendant entered upon it and commenced to' build a new fence three or four feet south of the fence of 1894. Thus it was undisputed that the defendant entered on lands which were in the sole and peaceable possession of the plaintiff, and dug post holes, and commenced to erect a. fence.

It is elementary that sole and exclusive possession is sufficient to entitle a party to maintain an action of trespass as against one who cannot show title in himself or a right to-occupy from the real owner. Stahl v. Grover, 80 Wis. 650. The defendant proved paper title to the S. of the S. E. ¿ of section 10, and also showed that by one survey the south line of his property was where he was building the fence. But there was in the case already proof of another survey) by which the line was located several feet to the north, and on the line where the defendant built his fence in 1894. So the question was as to the correctness of the rival surveys,, and this was a question for the jury, and in fact the only question in the case. There was no evidence upon which title could be found in the defendant by adverse possession. It is true that the old rail fence had been in existence many years prior to 1894, and that the defendant and his grantors had occupied up to it, but there is nothing to show that such occupation was under claim of title at any time; and, on the contrary, the fact that both parties joined in having a new survey made in 1891 for the purpose of establishing the line, and that the defendant moved his fence to the line so established, is very clear proof that he was not then claiming'to own further than the true line, and must be considered as conclusive, in the absence of any explanation. The jury having, in effect, decided, without .error, that the survey of 1891 was correct, judgment for the plaintiff necessarily follows.

By the OowrU— Judgment affirmed.