Wollman v. Ruehle

75 N.W. 425, 100 Wis. 31, 1898 Wisc. LEXIS 198

• Court: Wisconsin Supreme Court
• Decided: May 24, 1898
• Status: Published

Opinion

Bardeen, J.

The undisputed evidence shows that in 1856, at the time defendant’s father purchased the westerly tract, he was informed that the fence was on the true line, by both his grantor and Heavner, the owner of the other tract, and that it was then agreed which portion of the fence each should keep up. It is further established beyond dispute that defendant’s father occupied the premises on his side, up to tbe fence, until bis cleatb in 1861, and that defendant remained in possession witb tbe consent of tbe other heirs, and as one of tbe claimants to tbe land, until be secured tbeir title, and tbence on to tbe commencement of this suit. It is also equally certain that when tbe fence was first established tbe exact location of tbe true line was not known by the pasties, but that tbe location where tbe fence was actually built was considered tbe true line, and was agreed upon and lived up to for over forty years without question. Long acquiescence in tbe line so established, witb undisputed possession for such a long period of time, raises a strong presumption that tbe line so recognized is tbe true line, and is not overcome by tbe mere fact that a survey, made long after government monuments have been obliterated or lost, reveals another line. Such is tbe bolding in Welton v. Poynter, 96 Wis. 346, and is a rule in favor of tbe stability of title.

Tbe possession of defendant or bis father was not simply permissive. It was distinctly hostile, and founded upon tbe agreement and location of tbe fence. Tbe son’s possession was eo-extensive witb that of bis father. He held the premises after bis father’s death, claiming an interest in his own right, and by permission and under agreement witb the other heirs. Tbe possession of one tenant in common is tbe possession of all tbe cotenants. Newell, Ejectment, 128,129. And in general all acts done by a cotenant, relating to or affecting tbe common property, are presumed to have been •done for tbe benefit of all tbe cotenants.

Independently of tbe agreement to establish tbe line, there seems to be ample proof of possession of defendant, and those in privity witb him, to carry it far beyond the statutory period of limitation. Sec. 4207, R. S. 1878, provides that “ no action for tbe recovery of real property or tbe possession thereof, shall be maintained, unless it appear that tbe plaintiff, his ancestor, predecessor or grantor, was seized or possessed, of the premises in question, within twenty years before the commencement of such action.” The answer sets up that the plaintiff has not been so seised or possessed, and the proof amply sustains such contention. When plaintiff produced proof of title from the common grantor, showing legal title in himself, under sec. 4210, R. S. 1878, the presumption arose that he had been possessed of the disputed premises within the time prescribed by law, and that the possession of defendant was deemed to have been under, and in subordination to, the legal title. When, however, the defendant showed uninterrupted, open, and exclusive possession for a period of over twenty years, by himself and his privies, such possession, unexplained, established the fact of adverse possession from the beginning. This question is so fully and ably discussed in Wilkins v. Nicolai, 99 Wis. 178, that it needs but a reference to that case to settle the questions here involved adversely to the plaintiff. Here there was no attempt made to explain away or attack the character or nature of defendant’s possession, so that under the rule laid down in the cases cited the finding and judgment should have been for defendant.

By the Gowvt.— The judgment ■ of the circuit court is reversed, and the cause is remanded with directions to enter judgment for the defendant.