45 Wis. 23 (Wis. 1878), Lampe v. Kennedy

Citation:45 Wis. 23
Opinion Judge:ORSAMUS COLE, J.
Party Name:LAMPE v. KENNEDY and others
Attorney:Wm. E. Carter, for the appellant, For the respondents, a brief was filed by Lanyon & Spensley and M. J. Briggs,
Court:Supreme Court of Wisconsin
 
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Page 23

45 Wis. 23 (Wis. 1878)

LAMPE

v.

KENNEDY and others

Supreme Court of Wisconsin

August, 1878

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APPEAL from the Circuit Court for Iowa County.

Ejectment, commenced in 1875, for a strip of land about three rods in width, north and south, and twenty-four rods in length, east and west, a part of the southeast quarter of a certain section 28. The strip is further described in the complaint as commencing at the southwest corner of Tormey & Co.'s lot; thence south three rods; thence south 81 [degree] east, about twenty-four rods; thence north three rods; and thence westerly along the [south] line of Tormey & Co.'s lot, to the place of beginning; and it is alleged that the southwest corner of Tormey & Co.'s lot is eight chains and forty-seven links north from the southwest corner of said southeast quarter-section.

The answer contained a general denial, and set up both the ten-year and the twenty-year statute of limitations.

On the trial, plaintiff introduced in evidence an unrecorded plat of the quarter-section, made by Maj. C. F. Legate, in June, 1847. The origin of this plat is thus stated by Mr. Justice COLE: "The persons who had mining claims on this quarter-section before the land was open to entry, chose arbitrators to settle and determine the actual boundaries of their lots, where they could not agree among themselves. This plat was made to show the boundaries of their respective lots as thus fixed by agreement or by the arbitrators. The quarter-section was then surveyed by Maj. Legate (with another), and he prepared the plat to show the extent and boundaries of each lot. Goodsell, a disinterested party, was chosen or appointed by the claimants to enter the land for their benefit, and he did so. He testifies that he was instructed by these claimants 'to deed to the persons mentioned on the plat, and according to the plat.'" Goodsell further testified that he was "guided solely by the plat in making the deeds."

The lot now owned by the plaintiff is the southwest corner lot of the quarter-section, called on the plat the "Rowell" lot. Adjoining this on the north is the "Tormey & Co." lot, owned by defendants. Next adjoining this northward is what is designated on the plat as the "Rodolf" lot. The deed of this from Goodsell to Rodolf is dated June 10, 1847. It describes the lot as commencing 16 chains and 70 links south of the northwest corner of the quarter-section; gives the courses and distances of all the sides, and specifies the length of the western side, on the west line of the quarter-section, as 7 chains and 39 links. The deed from Goodsell to Bannan, Tormey and others, of the Tormey & Co. lot, is dated July 26, 1847. It describes the boundaries as "commencing at a stake at the northwest corner of Rowell's lot; thence south 81 [degree] east, 7 chains and 59 links, so as to leave Rowell's fence standing on Rowell's lot; thence north 7 [degree] east, 8 chains and 12 links; thence north 86 [degree] west, 8 chains and 52 links; thence south 7 chains and 60 links, to the place of beginning." The stake here referred to is not now found. The deed from Goodsell of the "Rowell" lot was dated April 8, 1850...

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