Kurz v. Miller

• Citation: 62 N.W. 182,89 Wis. 426
• Parties: KURZ v. MILLER.
• Decision Date: 05 February 1895
• Court: Wisconsin Supreme Court

89 Wis. 426

62 N.W. 182

KURZ

v.MILLER.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by William Kurz against G. A. Miller. From a judgment for plaintiff, defendant appeals. 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, 1892, 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 40 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 40 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 40, as claimed by the latter; that the plaintiff had been in possession of his 40 since 1866, and cultivated 5 acres of it, and pastured cattle and made hay on the rest, and put in some willows; that the ditch was 80 rods long and 2 feet deep, and the willows were planted 1 1/2 feet south of the line, for a distance of 25 rods in 1871, and 5 rods in 1873, after the defendant had purchased his 40; that the plaintiff's cattle pastured up to within 10 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, 1891; that the willows were planted for a protection against the wind, and that there was another ditch about 10 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 20 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 10 feet apart; that the occupation and use of the plaintiff's 40 had only been up to the southern ditch south of the willows, and that no one had occupied the space between the ditches for 20 years, to their knowledge; that the defendant occupied and used the land up to the north ditch, and there was evidence that, about 15 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 willows on the south side; and that he built a fence there accordingly, and 12 or 15 years afterwards removed it. On the part of the defendant, evidence was given tending to show that various surveys of the line in question had been made, namely, one by Hunn, county surveyor in 1860; that they put down stakes, and they were south of where the willows were planted, and on the ridge between the two ditches; that these ditches and the ridge were made after the survey, and had been there ever since the defendant purchased; that the defendant did not know, and it had not been brought to his knowledge, that Kuderling and the plaintiff had made any agreement such as claimed by the latter, and defendant denied building a fence on the west part of the line north of the ditch, at the suggestion of the plaintiff. Evidence was given tending to show that the true line was where it was claimed to be by the defendant, and where the survey of Hunn located it; that two surveys had been made by Leach when county surveyor, one about two years and the other about one year before the trial, and there had been one made by one Randall; that the surveys made by Hunn, by Leach, and by Randall were on the same line substantially, or with but trifling difference, and that the willows that the defendant cut down and those he took away were all north of this line; that both ditches had been dug when the defendant purchased, and that dirt had been thrown up between them, and there was at the time popple and wild willow brush along there, and no ditches had been made afterwards; that Leach found some of the bearing trees marked by Hunn in his survey in 1860, and used his field notes as they appeared of record; and that the basis of the survey as made by Leach was the government survey; and that both of his surveys had been recorded. There was evidence on the part of the plaintiff tending to show that one Palmer had made a survey in 1867, according to which the line was the north ditch, as plaintiff contended...