Batz v. Woerpel

• Decision Date: 11 March 1902
• Citation: 89 N.W. 516,113 Wis. 442
• Parties: BATZ v. WOERPEL.
• Court: Wisconsin Supreme Court

113 Wis. 442

89 N.W. 516

BATZ

v.WOERPEL.

Supreme Court of Wisconsin.

March 11, 1902.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Peter Batz against William Woerpel. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

This action was commenced in justice's court August 4, 1900, to recover $25 damages for trespassing upon the plaintiff's land, described, and mutilating a shade tree thereon, July 10, 1900. The defendant, by way of answer, pleaded title to the locus in quo, tracing his title by mesne conveyances from Henry Gilman, who owned the same May 4, 1870, and alleged that the defendant, his predecessors and grantors, held and possessed the locus in quo for more than 20 years adversely to any other claim, and were in open and notorious possession of the premises where the wrongful acts were alleged to have been committed under claim of title in fee, exclusive of any other right, and denied all other allegations in the complaint not therein specifically admitted or otherwise answered. The cause having been certified to the circuit court, and a jury waived, it was there tried, and upon such trial it appeared from the undisputed evidence, and was in effect found by the court, that May 4, 1870, Henry Gilman was the owner in fee simple and in possession of a strip of land on the east side of lot 4 in block 12 in the village of Sun Prairie, being 20 rods long north and south, and 5 rods wide east and west, and bounded on the north by Main street, on the east by Railroad street, and on the south by an alley 33 feet in width, and on the west by the balance of said lot 4; that on that day Henry Gilman and wife conveyed to Sterner & Lampson a piece of land off the south end of that strip, extending 4 rods north of the north line of the alley, and 5 rods west of the west line of Railroad street, and that Sterner & Lampson immediately took possession and built a dwelling house thereon, which extended a short distance north of the north line of the lot so conveyed to them; that in August, 1870, Sterner & Lampson, being desirous of building a fence on the north line of their lot so conveyed to them, consulted with Henry Gilman, who then owned the balance of the strip, in respect to the same, and, after Henry Gilman had set the stakes where such fence should be built, Sterner & Lampson built the fence on the line so staked out by Henry Gilman, and that, as a matter of fact, the line so staked out by Henry Gilman, and the fence so constructed thereon, was from 8 to 10 feet north of the north line of the lot so conveyed to Sterner & Lampson; that Sterner & Lampson went into the possession of all the lands south of such fence in August, 1870; that November 26, 1870, Lampson sold and conveyed his undivided one-half of said lot to Sterner, who took the exclusive possession of said lot and all that part of said strip south of the division fence so constructed, with the knowledge and consent of Henry Gilman; that September 17, 1873, the title and possession of all of said strip south of said fence passed by deed of conveyance and delivery from Henry Sterner and wife to Nicholas Bisch; that May 19, 1879, such title and possession of all of said strip south of said fence passed by deed of conveyance and delivery from Nicholas Bisch to Michael Starker; that October 6, 1885, such title and possession of all of said strip south of said fence passed by deed of conveyance and delivery from Michael Starker and wife to the defendant herein; that each of such deeds and conveyances contained substantially the same description as the deed from Henry Gilman to Sterner & Lampson, and the fence during all of those years remained at the place and on the line so staked out and located by Henry Gilman in 1870; that, by reason of the delapidation of the fence, the defendant removed the same, except the posts, in 1886, and two of the posts originally set remained at the time of the trial of this action; that, during all of those years from 1870 until after the defendant went into possession, he and his grantors used and occupied the ground near the entrance of the house at the door on the north side of the house for an entrance and passageway to the house; that February 15, 1886, Henry Gilman made a deed of conveyance to the plaintiff of the balance of said strip of land, the same being described therein as 5 rods wide and 16 rods long, and bounded as indicated, and which description in fact extended from 8 to 10 feet south of said fence. The court also found, upon evidence more or less in dispute, that the defendant continued in the use and occupation of the house and ground on the north side of the house, being the strip in question, and not included in the description in the recorded deed to the defendant and his grantors, nor in any of the deeds to and from his grantors back to the time of Henry Gilman, which use and occupation was continued by the defendant up to about the year 1893; that after the removal of the fence as aforesaid by the defendant, and from about 1887 and 1888, the tenant and representative of the plaintiff used and occupied a small part of the strip in dispute, not included in the deed to the defendant, for the purpose of passing over the same, but that the defendant also at the same time used the said strip, and never gave up or parted with the actual use and possession of the same; that some time in the summer of 1893 the plaintiff, under claim of being the owner of said strip, constructed a barb-wire fence upon said disputed strip, not included in said deed to the defendant, which fence was located about 18 inches north of the house of the defendant, and about from 6 to 8 feet upon the east end south of the original fence, the post of which is still standing near the sidewalk, and which post is a few inches north and east of the center of a certain elm tree which is upon the strip of land, and wholly excluded the defendant from all of the strip of land north of the barb-wire fence; that up to the time of the construction of the barb-wire fence there was a strip in the neighborhood of 4 feet north of the house that had been used exclusively by the defendant and his grantors as a passage and as a footpath; that July 10, 1900, the defendant went upon the strip of land and cut off certain limbs of the elm tree, the body of which tree is located south of the original fence, and upon the strip in question; that most of the limbs so cut off by ...