62 N.W. 182 (Wis. 1895), Kurz v. Miller

Citation:62 N.W. 182, 89 Wis. 426
Opinion Judge:SILAS U. PINNEY, J.
Party Name:KURZ, Respondent, v. MILLER, Appellant
Attorney:F. W. Houghton, for the appellant, For the respondent there was a brief by Gary & Forward, and oral argument by Charles H. Forward.
Case Date:February 05, 1895
Court:Supreme Court of Wisconsin
 
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Page 182

62 N.W. 182 (Wis. 1895)

89 Wis. 426

KURZ, Respondent,

v.

MILLER, Appellant

Supreme Court of Wisconsin

February 5, 1895

Argued January 12, 1895.

Page 183

APPEAL from a judgment of the circuit court for Winnebago county; GEO. W. BURNELL, Circuit Judge. Reversed.

This action is for trespass to the plaintiff's freehold, the N. E. 1/4 of the S.W. 1/4 of section 36 in the town of Nepeuskun, January 15, 1893, and for cutting down and carrying away certain willow trees thereon; and the answer was a general denial. It appeared that the defendant owned the S. E. 1/4 of the N.W. 1/4 of the same section, adjoining the plaintiff's forty on the north, which he had purchased of one Kuderling, April 11, 1874; and the matter in dispute is one of boundary between the respective tracts, the defendant claiming that the place where he cut the trees was on his own premises.

The land was marsh or meadow land, and the plaintiff gave evidence tending to show that he and Kuderling, in 1871, when the latter was owner of the premises he afterwards sold to the defendant, agreed upon a line between that tract and the plaintiff's forty to the south of it; that the line agreed on was according to surveyors' stakes then existing on the east and west, and that a ditch was afterwards dug on the east half of the line so agreed on, and that the plaintiff planted willows on the south side of the ditch, along the easterly half of the line, and that a ditch fence was built in 1871 on the west half of the line, and, if it extended eastward, it would have run on the line between the premises Kuderling sold and the plaintiff's forty as claimed by the latter; that the plaintiff had been in possession of his forty since 1866, and cultivated five acres of it, and pastured cattle and made hay on the rest, and put in some willows; that the ditch was eighty rods long and two feet deep, and the willows were planted one and one-half feet south of the line, for a distance of twenty-five rods in 1871, and five rods in 1873; that the plaintiff's cattle pastured up to within ten feet of the south side of the willows, and a wire and board fence had been put along to prevent them getting any nearer, but on the west part of the line his cattle had pastured up to the ditch; that the plaintiff cut some of the willows down in 1891, and the defendant took them away, and that the defendant cut down and carried away the rest in January, 1893; that the willows were planted for a protection against the wind, and that there was another ditch about ten feet south of the one mentioned, dug before the plaintiff purchased his land, and that it had been afterwards cleaned out to carry off the water; that it ran pretty near the same distance as the willows, and there had been a fence between the ditches; that the plaintiff never cultivated the land where the willows were put out until 1891; that the plaintiff and Kuderling, when they dug the ditch, believed it was on the line. Plaintiff's two sons testified that they could remember back twenty years; that there had during that time been two ditches on the easterly portion of the line, and the willows were between these ditches, which were about ten feet apart; that the occupation and use of the plaintiff's forty had only been up to the southern ditch south of the willows, and that no one had occupied the space between the ditches for twenty years, to their knowledge; that the defendant occupied and used the land up to the north ditch, and there was evidence that, about fifteen years previous to the action, there was a conversation between the parties as to where the defendant should put his fence on the west half of the line; that the plaintiff told him he should put it on the north side of the ditch, just as he had put his...

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