Schwallback v. Chi., M. & St. P. Ry. Co.

• Citation: 34 N.W. 128,69 Wis. 292
• Parties: SCHWALLBACK v. CHICAGO, M. & ST. P. RY. CO.
• Decision Date: 20 September 1887
• Court: United States State Supreme Court of Wisconsin

69 Wis. 292

34 N.W. 128

SCHWALLBACK

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

September 20, 1887.

Appeal from circuit court, Washington county.

This action of ejectment was commenced May 12, 1886, and is for a strip of land described, being 120 feet in width and containing about one and fourtenths acres, and lying on the southerly side of, and adjoining the defendant's right of way at, Germantown station. Upon the trial the following facts were proved by record evidence, and are undisputed. Both parties claim title to the strip of land in question through one Witlin. In 1853 he owned the whole 40 within which this strip was embraced, and had been such owner from 1845. December 9, 1853, Witlin and wife, by warranty deed with covenants of seizin, quiet enjoyment, and against all incumbrances, reciting a consideration of $23, conveyed to the Milwaukee, Fond du Lac & Green Bay Railroad Company a strip of land through said 40, six rods in width, and containing one and three-fourths acres “for the uses and purposes of said [last named] railroad company,” being for its right of way, and which deed was recorded May 3, 1855; that said strip subsequently became the property of the defendant, and is now held by it as a part of its right of way. October 3, 1855, Witlin and wife, by warranty deed with covenants of seizin, quiet enjoyment, and against all incumbrances, conveyed to the La Crosse & Milwaukee Railroad Company, the strip of land in question, and fully described, in said 40, of 120 feet in width, and lying on the southerly side of and adjoining said right of way, and extending south-easterly a distance of 550 feet containing one and four-tenths acres, “for the uses and purposes of the said [last named] railroad company,” wherein the said Witlin and wife covenanted and agreed for themselves, their heirs and assigns, and at their own costs and charges, to build and maintain good and sufficient fences on both sides of said last-named strip of land, and which said last-named deed was recorded October 30, 1855; and that said last-named strip of land subsequently became the property of the defendant as the successor of said La Crosse & Milwaukee Railroad Company, and was in the possession of the defendant at the commencement of this action. June 28, 1864, Witlin and wife, by warranty deed reciting a consideration of $2,200, conveyed said 40 acres of land, “more or less, agreeable to government survey,” to Fridolin and Joachim Schindler, and said deed was recorded June 29, 1864. October 12, 1866, Fridolin, Joachim and Henry Schindler, by warranty deed reciting a consideration of $2,200, conveyed said 40 acres of land, “more or less, agreeable to government survey,” to John Francis Schwallback, father of the plaintiff, and which said deed was recorded December 18, 1866. February 26, 1884, John Francis Schwallback and wife, by warranty deed reciting a consideration of $2,000, conveyed to the plaintiff a portion of said 40 acres of land, described as “commencing at the north-west corner thereof; thence south, 80 rods, to the 1-16 line; thence east, 80 rods, to 1-8 line; thence north. 52 rods and 5 feet, to the south line of the railroad grounds; thence north-westerly, along said south line of said railroad, 58 rods and four feet, to the 1/4 line; thence west, 28 rods and seven feet, to the place of beginning,”--containing 35.56 acres of land according to government survey. April 27, 1886, John Francis Schwallback and wife, by quitclaim deed reciting a consideration of $1, conveyed to the plaintiff all that portion of said 40 acres lying south and west of said strip of land constituting said right of way, and described in said deed of December 9, 1853. The cause was submitted to the jury who returned a verdict in favor of the plaintiff. From the judgment entered thereon, the defendant brings this appeal.

P. & T. O'Meara, for respondent.

John W. Cary, for appellant.

CASSODAY, J.

It appears that the strip of land in question, lying along the south-westerly side of the defendant's right of way, was used and cultivated by the plaintiff's several grantors until the fall of 1885. It was then fenced off by the defendant. That was after the plaintiff obtained from his father a warranty deed of the 35.56 acres, and before he obtained from him his quitclaim deed. The two strips of land mentioned, claimed by the defendant, and being in that 40, together contained a little over three acres. During the 18 or 20 years that the plaintiff's father owned the portion of the 40 not belonging to the railway company, only 37 acres appear to have been assessed. Upon the facts stated, the plaintiff claims the right to recover on the ground of adverse possession in him and his several grantors. The question presented is whether such facts warrant the court in holding such adverse possession. The title to the strip of land in question undoubtedly became vested in the railroad company by the deed to it from Witlin and wife, October 3, 1855, subject only to re-entry in case of breach of condition subsequent. Horner v. Railway, 38 Wis. 165;Cleveland, C., C. & I. Ry. v. Coburn, 91 Ind. 557, 17 Amer. & Eng. R. Cas. 41; Vail v. Railroad Co., 21 N. J. Law, 190. The mere fact that Witlin continued to use and occupy that strip in connection with his other lands, until he conveyed to the Schindlers in 1864, is no evidence that his possession was adverse to the railroad company, his own grantee. On the contrary, such occupancy by him for nine years, in the language of the statute, must “be deemed to have been under, and in subordination to, the legal title,” which he had so conveyed to the railroad company; for he certainly was estopped by his own deed from claiming that his possession was adverse to his own grantee. Section 4210, Rev. St.; McCormick v. Herndon, 67 Wis. 650, 31 N. W. Rep. 303. The deed to the railroad company was recorded in 1855. This being so, we must hold that the Schindlers took title with constructive notice of the existence and contents of that deed. For the same reason, we must hold that the father of the plaintiff, and also the plaintiff, took title with like notice. So that the plaintiff,...