Allie v. Russo
| Decision Date | 27 March 1979 |
| Docket Number | No. 76-587,76-587 |
| Citation | 276 N.W.2d 730,88 Wis.2d 334 |
| Parties | Meta A. ALLIE, Plaintiff-Respondent, v. Janice RUSSO, Robert W. Hale, Patricia Hale, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
Janice Russo, Robert W. Hale and Patricia Hale, defendants-appellants, appeal from a judgment which determined that Meta A. Allie, plaintiff-respondent, acquired title by adverse possession to a part of Lot 53, The Kenosha Realty Company's First Addition, located in the city of Kenosha, and owned by the appellants. The judgment awarded the respondent title to a strip of land on the northerly portion of Lot 53.
The judgment further ordered the appellants to relocate a new fence they had installed near the fence line of an old fence which the appellants had removed. Trial of the cause was to the court.
Thomas G. Hetzel and Hetzel & Decker, Kenosha, for appellants.
L. E. Vaudreuil and Vaudreuil & Vaudreuil, Kenosha, for respondent.
In setting forth the facts, reference is made to a survey made by Robert L. Smith, registered land surveyor, which was received in evidence at trial.
(See following illustration.)
The respondent acquired title to Lot 52 in 1942, and has occupied the premises continuously since that date. Sometime subsequent to 1942, one Larsen apparently acquired title to Lot 53. In 1962, the appellants commenced occupancy of the dwelling located on Lot 53 and in 1972, the appellants purchased the property and were still occupying the premises at the time of trial. Both lots are bordered by 25th avenue on the west and each abuts a public alley on the east. Immediately adjacent to and south of Lot 53, the lot owned by the appellants, is another public alley.
This dispute arose during the summer of 1974, when the appellants decided to enclose their backyard with a chain-link fence to contain their show dogs. In so doing they removed an old fence which separated the backyards of the parties. This old fence ran generally along the south side of the old concrete walk shown on the survey. The new chain-link fence made two changes in reference to the old fence it replaced. At the east, or alley end, the fence was moved six to eight inches to the north and closer to the old concrete walk. The new fence then continued west along the south side of the walk to the place where the old fence ended. The west end of the old fence was at a point approximately in line with the rear of the dwellings on the respective lots. Near the west end of the old fence was a gate, so hinged to swing either way. The gate latched but had no lock. The new fence eliminated this gate.
Upon completion of the new fence, the respondent commenced this action pursuant to sec. 281.02(1), Stats.1971, now sec. 893.10(2), to acquire title by adverse possession to a parcel of land which is a part of Lot 53, owned by the appellants, but which lies north of the old fence.
On the east, or alley, boundary of the two lots is an iron pipe that purportedly marks the east corner of the adjoining lots. Due west of the iron pipe is a chisel mark in the sidewalk on 25th avenue which appears to mark the west corner of the two lots. As the Smith survey depicts, the old concrete walk commences at the alley on the east and as it continues west, the lot line established by the iron stake near the alley and chisel mark in the 25th avenue sidewalk actually runs through this old sidewalk. The walk is about 1.5 feet wide and the old fence was south of the walk. It is undisputed that the old fence was located on Lot 53, the lot owned by the appellants.
Not shown on the Smith survey are other old walks on the two properties. At the place where the gate was located near the west end of the old fence, a walk continues north, past the rear of the respondent's house, to the north side of the house, then turns west and continues to 25th avenue.
Also from the gate near the west end of the old fence there is a walk that goes south from the gate across Lot 53, owned by the appellants, to the alley on the south side of the appellants' property. Also on appellants' lot is a walk which extends west along the north side of the appellants' house from the north-south walk behind the house to the 25th avenue sidewalk. The old fence did not continue between the houses or extend into the front yards.
At the east or alley end of the old fence there was also a gate. This gate was hinged to the respondent's garage and latched, but not locked, on the easternmost fence post of the old fence. This gate was not affected by the new fence because the appellants left the old easternmost fence post in place.
Thus when the old fence was in place there was a narrow strip of land along the south side of the old concrete walk. This strip of land measured a few inches at the west end of the old fence and about one foot at the east or alley end of the old fence. When the new fence was installed the west end was in approximately the same place as the old fence but the east or alley end of the fence was six to eight inches closer the south side of the old concrete walk. What this really amounts to is that the east end of the old fence was two feet south of the iron pipe and the east end of the new fence is now 1.33 feet south of the iron pipe.
Appellant, Janice Russo, testified the new fence was moved six to eight inches north of the old fence at the east end because at that point the old fence had become embedded in a tree. She also said they did not put the new fence on the lot line because they would have to tear up the sidewalk to do so.
The surveyor testified that at the east end there was a variance from the old fence post of six inches to the fence wire and of eight inches to the new concrete post base. The surveyor said the new fence was 1.33 feet south of the lot line at the east end and 1.3 feet south of the lot line at the west end.
Respondent testified that she had always thought that the old fence marked the property line. She said she had maintained the strip of land between the fence and the sidewalk by planting flowers and foliage and by weeding. She said they had never thought it necessary to have the lot surveyed. She said they were good friends with the Larsens and had never stopped them from using the sidewalk to the alley. She said she had used the west gate to reach the south side of her house to wash windows. She denied that the appellants had used the sidewalk to reach the alley and said Janice Russo only used the gate occasionally to come see her or get her dog or cat out of the yard. She said Russo planted flowers only on the south side of the fence. She said she first told the appellants that she owned the sidewalk at the time of the fence dispute.
Janice Russo said she knew the fence was on her lot when she purchased it because Larsen had told her the sidewalk was the lot line. In response to questions by the trial court she said she had never objected to the presence of the fence because she knew it was hers and until now had never been given any reason to point that out. She said respondent first made her claim known after objecting to the fact that the new fence would not have a gate. Russo testified they used the west gate to reach the alley and that respondent never attempted to stop them. Nor did they attempt to stop respondent from using the sidewalk. She said both they and respondent had used the gate many times. Russo said she used the sidewalk to weed along the north side of the fence. She said she had planted half the flowers on the north side of the fence. She testified Rudi Russo had repaired the fence once and that her son occasionally shoveled the walk.
No evidence was introduced regarding the chain of title of either lot, the origin of the original fence, the date of the construction of the sidewalk or the placement of iron pipe or chisel mark in the 25th avenue sidewalk. It would appear the sidewalk, fence and lot corner marks were all in existence when the respondent and her husband, now deceased, purchased Lot 52 in 1942.
The trial court made the following findings of fact pertinent to this appeal:
The trial court concluded that the respondent had acquired title by adverse possession to a part of Lot 53, owned by the appellants. The parcel of land is the north part of Lot 53. The judgment describes the disputed parcel as follows:
"Commencing at the southeast corner of Lot 52 . . ., thence running south for a distance of two (2.0) feet; thence in a westerly direction to a point one (1.0) foot...
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