Allis v. Field

• Decision Date: 05 February 1895
• Citation: 62 N.W. 85,89 Wis. 327
• Parties: ALLIS v. FIELD.
• Court: Wisconsin Supreme Court

89 Wis. 327

62 N.W. 85

ALLIS

v.FIELD.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from superior court, Milwaukee county; Robert N. Austin, Judge.

Action by Margaret W. Allis against Samuel A. Field. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This was an action to recover so much of lots 1 and 2 in block 107 in the Seventh ward of the city of Milwaukee as lies east of a line drawn across said lots, beginning at the southwest corner of the north and south fence across said lot 2 in the rear of the house formerly occupied by Emily S. Brown, on said lot; thence running north, along said fence, and parallel to the west line of said lots 1 and 2, to Martin street. The answer consists of a general denial, and sets up title by adverse entry and possession of the demanded premises, under claim of title, for over 20 years prior to the commencement of the action. The plaintiff derived her title through sundry mesne conveyances of the west 80 feet of said lots. The defendant was shown upon the trial to be the owner of the whole of said lots, except the west 80 feet, both deriving their title under one McCarty. The controversy is as to the correct location of the boundary line between the respective parcels of the parties, and the strip in dispute across lots 1 and 2 is bounded as follows: Beginning at the south end of the north and south fence, running across said lot 2, in the rear of the house formerly occupied by Emily S. Brown, at a distance 4.75 feet west of the southwest corner of said west 80 feet of said lot 2; thence running in a northerly direction along said fence, to a point 2 1/2 feet north of the south line of lot 1, and 6.10 feet west of the east line of the west 80 feet of said lot 1; thence in a northerly direction, to a point on the north line of lot 1, about 6 1/2 feet west of the northeast corner of the west 80 feet of said lot. On the 25th of August, 1856, Allis, having acquired title to the whole of lots 1 and 2, conveyed the west 80 feet thereof to Charles Schley; and it appeared that the title of Charles Schley thereto, on May 12, 1860, became vested in Charles Stebbins, who conveyed the same, February 12, 1873, to the plaintiff. On September 26, 1856, Allis and wife conveyed the balance of said lots 1 and 2 to Van Schaick and Gunnison. Gunnison quitclaimed to Van Schaick his undivided half; and the latter, February 11, 1860, conveyed by metes and bounds all of lots 1 and 2, except the west 80 feet thereof, to one Ludington; and the latter, on April 7, 1863, conveyed the same to one Price, and March 9, 1866, Price conveyed to James S. Brown the same premises, by the same description. On the 7th of August, 1886, Emily S., James P., and Clarence S. Brown, the widow and heirs at law of James S. Brown, deceased, conveyed the same, by the same description, to the defendant, Field, and on the 5th of October, 1889, quitclaimed to him the strip of land in controversy, by metes and bounds. The true line between the premises of the plaintiff and defendant is on the east side of the strip in dispute, which had been inclosed by a fence with the premises now held by the defendant ever since prior to the conveyance to Brown; and it was claimed that this strip had been adversely held by Brown and those claiming under him, including the defendant, ever since Brown entered under his deed from Price. It is conceded that the possession of Brown, if adverse, did not continue for the full period of 20 years; and, in order to avail himself of his defense of the statute of limitations, it was necessary that the defendant should be able to tack to Brown's alleged adverse possession an adverse possession of the strip in dispute on the part of his heirs and successors in title. The evidence was that Brown occupied the premises with which the strip was inclosed, as his homestead, ever since about May 1, or May, 1866. He died in the spring of 1878, leaving a widow, Emily S. Brown, and two sons, Clarence S. and James P. Brown; and they continued to occupy it until a Mr. Ellsworth came there as a tenant, though one of the sons was in the house at the time. The premises were afterwards leased to one George Gibbs by the widow and sons, and he occupied as a tenant until the conveyance to the defendant, August 7, 1886. The defendant's evidence tends to show that it was in writing, and one of the sons of Brown testified that it was his recollection that Gibbs came in about May 1, 1886, “but I may be mistaken. He came in for a year. After the conveyance to the defendant, he collected the rent from Gibbs.” James P. Brown testified that “we moved out of there in April, 1886, with our goods and chattels, and it was rented to Gibbs later on.” There was no evidence to show how long Ellsworth held as tenant, nor whether his lease was verbal or written, nor was there any evidence to show the terms of either of the leases, or whether the demise in either instance included the strip in dispute. The evidence showed that it was first discovered that the fence was not on the true line about the time of the deed to the defendant, in August, 1886. The court found the plaintiff to be the owner in fee of...