Frank C. Schilling Co. v. DeTry

• Citation: 233 N.W. 635,203 Wis. 109
• Parties: FRANK C. SCHILLING CO. v. DETRY ET AL.
• Decision Date: 09 December 1930
• Court: United States State Supreme Court of Wisconsin

203 Wis. 109

233 N.W. 635

FRANK C. SCHILLING CO.

v.DETRY ET AL.

Supreme Court of Wisconsin.

Dec. 9, 1930.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Circuit Judge. Affirmed.

Action by Frank C. Schilling Company, a corporation, commenced on the 17th day of September, 1928, against the defendants to determine the interest of the plaintiff in a certain strip of land and to restrain the defendants from further trespassing thereon. Judgment for the plaintiff was entered May 17, 1930.

The plaintiff is a Wisconsin corporation, and the defendants are the widow and children of Alex Detry, deceased, and devisees under his will. The wives of the Detry sons are joined as defendants. The plaintiff brought this suit in equity to determine the right, title, and interest of the plaintiff in and to a strip of land, and to restrain the defendants from further trespassing thereon or interfering with the land in question and for nominal damages.

The dispute in this suit relates wholly to a twenty-foot strip of land lying on the westerly boundary of certain land belonging to the defendants. This strip extends in a southwesterly direction from Dousman street, in the city of Green Bay, to certain lands owned by the plaintiff. Plaintiff acquired its title by deed from Phœbe Elmore, whose ancestor in title was Andrew E. Elmore, who was also the ancestor in title of the lands of the defendants located to the east of said twenty-foot strip. Dousman street in the city of Green Bay runs east and west extending westerly from the Fox river. The Chicago & Northwestern Railway Company owns property used as a right of way for its several tracks and yards running on the westerly side of the Fox river and immediately to the west of the twenty-foot strip. The railway tracks cross Dousman street at an angle of approximately fifty-five degrees. Andrew Elmore, ancestor in title of both the plaintiff and defendants, owned the land southerly from Dousman street and easterly from the railway right of way to the dock line on the Fox river. These lands were platted facing westerly on Pearl street, which is now occupied by the railway company's right of way. The twenty-foot strip, as well as the property of the defendants, are portions of lots 9 and 10 of the plat. The defendants' land lies immediately to the east of the twenty-foot strip, and plaintiff's land, other than the twenty-foot strip, lies immediately to the south of defendants' land, and extends from the railway right of way to the dock line of the Fox river, and is a portion of lots 1 to 8, inclusive, of Dousman's addition. The defendants' title coming from Andrew Elmore is evidenced by two writings, a preliminary contract and a warranty deed. The contract is as follows:

“Green Bay, Wis., August 15th, 1902.

This is to certify that I have this day sold to Alex Detry, a piece of property on the south side of the Main Street Bridge, on the West Side 60 feet wide on the bridge, running back 125 feet and being alongside of a proposed alley say 20 feet in width along side of the railroad track, the east line being at right angles to the bridge, while the west line is alongside of the proposed alley. This would make a lot 60 feet in width at one end and something like double that at the rear end, and the price to paid for same is $700.

Jas. H. Elmore

I agree to take the said property as above.

Alex Detry.”

The deed dated August 18, 1902, is signed by Andrew E. Elmore. There is no dispute as to the description of the land conveyed. The only language in the deed which is involved in this controversy is the following: “Commencing at a point, * * * which point shall also be at a sufficient distance from the land of the Chicago & Northwestern Railway Company, conveyed to said company, * * * so that an alley might be established twenty (20) feet in width extending southwesterly along the Chicago & Northwestern Railway Company's tract or right of way.” This deed was duly recorded. When Elmore conveyed to Detry, the land deeded was submerged, as was also the twenty-foot strip to the west thereof. The plaintiff secured its title by deed dated September 16, 1926, which deed includes the twenty-foot strip mentioned in the deed to Alex Detry. Alex Detry, after obtaining his deed, entered into possession of the land conveyed, and began to fill in the twenty-foot strip belonging to Elmore by taking down the railing on the bridge and hauling in ties, dirt, cinders, and other refuse, both from the northerly or bridge end of the strip and from the railway right of way, and, as a result, made the twenty-foot strip passable for its full length. He thereafter erected buildings at the extreme southwest corner of his land facing the twenty-foot strip and at right angles thereto. In 1903 Detry filled in the back of his property, and built, on the easterly or river side thereof, what is referred to in the evidence as “stores.” He carried or hauled all of the material into his property over the twenty-foot strip for the purpose of building his “stores.” In 1904 he laid the foundation of what is referred to in the evidence as the “Blackstone Hotel.” All of the material for the construction of the hotel was brought in over the twenty-foot strip.

The westerly line of the hotel runs south at right angles to Dousman street, and then jogs to the west and then runs back or to the south at right angles with the street, so that the only portion of the hotel which is close to the twenty-foot strip is the northwest corner thereof. Other buildings have been built to the rear of the hotel facing on the twenty-foot strip. This strip has been used for purposes of ingress and egress by the tenants occupying such buildings and for the purpose of bringing in supplies. In 1904 boathouses were built on the Detry land by tenants who paid rent to Detry and who traveled continuously over the twenty-foot strip for about twenty-two years, except when travel over or use of said strip was interrupted by one Conley who erected a restaurant across the front or northerly end of said strip. Conley, under agreement with one Schader, a tenant of the hotel, erected the restaurant facing Dousman street and partially on the Detry property and almost wholly on the twenty-foot strip. This structure was fourteen feet wide running north and south and twenty-four feet long running east and west. Its position on the twenty-foot strip was such that it extended all the way across the strip except for a distance of less than a foot. Almost immediately after the placing of the restaurant on the twenty-foot strip Elmore, through his agent Driscoll, demanded and collected rent from Conley, in addition to the rent paid by Conley to the tenant of the hotel. The restaurant remained across the strip for at least a year and a half to two years. The restaurant was then moved around on the westerly side of the twenty-foot strip, so that it thereafter occupied about three-fifths of the width of the strip, and also occupied a portion of the railway right of way. Rent was thereafter paid to both Elmore and the railway company.

On April 15, 1911, James H. Elmore, as executor of the will of Andrew E. Elmore, wrote Alex Detry as follows: “You are encroaching and trespassing upon the property which I control, from the premises sold to you on Main Street Bridge. The small shanties are several feet across the line of what I intended as an alley; your slab dock is about three feet upon my property at the west end and one of the buildings on your southeast corner is across the line to the south, and I hereby notify you to remove these buildings and dock from the premises which I control and without unreasonable delay.” Ever since 1902 and up to the trial of this action the Detrys and their tenants used the twenty-foot strip continuously, except as interrupted during the year and a half to two years, when the street end of the strip was practically blocked and the use of the strip thereby prevented. During the time when the use of the strip was interrupted, the users thereof were compelled to travel to the west of the restaurant and over and upon the railway right of way in order to reach Dousman street. The foregoing facts are either undisputed or are as found by the trial court. As to any of the facts in dispute there is abundant evidence to support the findings.

The sole question apparently litigated below was whether the Detrys had obtained an...