Bettack v. Conachen

Decision Date08 October 1940
Citation294 N.W. 57,235 Wis. 559
PartiesBETTACK et al. v. CONACHEN.
CourtWisconsin Supreme Court


Appeal from a judgment and an order of the upper municipal branch of the County Court for Langlade County; A. N. Whiting, Judge.

Judgment reversed; order affirmed.

This was an action of trespass, begun on the 14th day of April, 1938, by Edward Bettack and Frances Bettack, his wife, against John G. Conachen, defendant. Upon the trial the allegations of trespass were abandoned and the action took the form of one to try the title to certain lands. The issues were submitted to a jury, the jury found in favor of the plaintiffs, and from a judgment entered upon the verdict of the jury in favor of the plaintiffs on the 29th day of December, 1938, the defendant appeals.

The facts will be stated in the opinion.

Thomas E. McDougal, of Antigo, for appellant.

Arthur H. Strochan and Rex M. Smith, both of Antigo, for respondents.

ROSENBERRY, Chief Justice.

In their complaint the plaintiffs allege that they were the owners of a piece of land known as 611 South Superior Street, which was 90x167 feet, and allege that the defendant had trespassed thereon to their damage. In his answer the defendant set out facts which indicate that the real dispute between the parties was that the plaintiffs were claiming title to a piece of land 4 feet 2 inches wide on the west end extending easterly 167 feet where it came to a point. So that the action became one to try the title to this wedge-shaped piece of land. We are not advised bow this transition was made, but as all parties agree that it was made, we shall treat the action as one to try title to land by adverse possession.

The situation is best understood by reference to the sketch reproduced herewith.


[1] While this sketch is not entirely accurate, it is useful for illustrative purposes. It appears without dispute that the defendant acquired title by deed dated September 23, 1903, duly recorded, September 25, 1903, to the premises lying just south of the Bettack premises, defendant's property as described in his deed also being 90 feet in width and 167 feet in depth from South Superior Street. There is no dispute but that an agreed point on the east line indicates the east end of the true boundary between the properties owned by plaintiffs and the defendant according to their respective deeds, the line being established by a joint survey made by the county and city surveyors. At the time the defendant acquired his property in 1903, he bought from one Charles Knapp. At that time the premises to the north were owned by one James Drake. In 1917, Drake made a verbal arrangement with Mr. Bettack for the purchase of the premises. Bettack testified that he moved upon the premises in 1913 and lived thereon under a lease for three or four years. The plaintiffs acquired title to the premises by deed dated December 27, 1928. Plaintiffs now make no claim that the wedge-shaped strip of land already described was any part of the land which was conveyed to them by the deed from Drake. They therefore do not claim the disputed strip under color of title but rely solely upon adverse possession. While there is some conflict in the evidence as to whether there was a fence between the lots running back from South Superior Street, there is no dispute that no such fence has existed during the last twenty years. On the other hand, there was a fence on the line between the two properties on the east. The exact location of that fence is also a matter of dispute. While the plaintiffs did not have title to their lot by deed until 1928, the oral arrangementby which the Bettacks became the purchasers of the property made in 1917 or 1918, was sufficient to create continuity of the original adverse possession of the disputed strip if such there was. Illinois Steel Co. v. Budzisz, 1900, 106 Wis. 499, 81 N.W. 1027, 82 N.W. 534, 48 L.R.A. 830, 80 Am.St.Rep. 54; 1 Am.Jur. sec. 155 and cases cited.

[2][3] These facts lead us to a consideration of the character of the possession of the grantor of the plaintiffs, Mr. Drake. Before we proceed with that, it will be helpful to lay down some legal principles. Where a person enters under a deed of title, his possession is construed to be coextensive with his deed. Clarke v. Courtney, 1831, 5 Pet. 319, 8 L.Ed. 140; 1 Am.Jur., sec. 207, p. 909, Possession under color of title. While the statute, sec. 330.09, defines adverse possession by a person not claiming under a written instrument, it is affirmative and does not purport to enumerate all the conditions which constitute adverse possession. Zellmer v. Martin, 1914, 157 Wis. 341, 147 N.W. 371.

[4] It is established by a long line of cases that where one of two adjacent landowners extends his fence, through mere inadvertence or ignorance of the location of the true boundary line, so as to embrace within his inclosure lands belonging to his neighbor, with no intention of claiming such extended area, but with the intention of claiming adversely only to the true boundary line, wherever it may be, his possession of such extended area is not adverse or hostile to the true owner. It is sometimes stated, where the intention is not to claim to the visible boundary unless it is the true line, the possession is not adverse. Hacker v. Horlemus, 1887, 69 Wis. 280, 34 N.W. 125;Ayers v. Reidel, 1893, 84 Wis. 276, 54 N.W. 588;Fuller v. Worth, 1895, 91 Wis. 406, 64 N.W. 995;Reilly v. Howe, 1898, 101 Wis. 108, 76 N.W. 1114. See note-Possession with intention to claim to true line only not adverse, 97 A.L.R. p. 21.

[5] It is also well established that mere possession is not a sufficient basis for claim of title by adverse possession. Fairfield v. Barrette, 1889, 73 Wis. 463, 41 N.W. 624. Ayers v. Reidel, supra; Fuller v. Worth, supra.

[6] In later cases it is held, however, that where one takes actual possession such possession is not the less adverse because the person takes possession of the land innocently and through mistake. In other words, it is the visible and adverse possession, with an intention to possess the land occupied under a belief that it is the possessor's own, that constitutes its adverse character, and not the remote view or belief of the possessor. Wollman v. Ruehle, 1899, 104 Wis. 603, 80 N.W. 919;Bishop v. Bleyer, 1900, 105 Wis. 330, 81 N.W. 413;Gilman v. Brown, 1902, 115 Wis. 1, 91 N.W. 227;Dreger v. Budde, 1907, 133 Wis. 516, 113 N.W. 950;Mielke v. Dodge, 1908, 135 Wis. 388, 115 N.W. 1099;Ovig v. Morrison, 1910, 142 Wis. 243, 125 N.W. 449;Progress Blue Ribbon Farms v. Harter, 1911, 147 Wis. 133, 132 N.W. 895;Wilson v. Stork, 1920, 171 Wis. 561, 177 N.W. 878;Knutson v. Munson, 1932, 207 Wis. 248, 240 N.W. 542;Krembs v. Page 1, 1933, 210 Wis. 261, 246 N.W. 324.

In all of these cases there had been a fence marking the boundary line and the party claiming by adverse possession had used the premises up to the fence for the requisite twenty-year period.

[7] Where one goes upon the land of another without color of title his rights will be confined to that portion of the property of which he takes actual possession. Watkins v. Holman, 1842, 16 Pet. 25, 10 L.Ed. 873.

[8] Where the true owner is in actual possession of a part of the land claiming title to the whole he has the constructive possession of all the land not in the actual possession of the intruder. Deputron v. Young, 1890, 134 U.S. 241, 10 S.Ct. 539, 33 L.Ed. 923; 1 Am.Jur. 909, cases cited Note 17.

[9][10] All reasonable presumptions are made in favor of the true owner in case of a claim by adverse possession including the presumption that actual possession is subordinate to the right of the true owner. Illinois Steel Co. v. Budzisz, 1900, 106 Wis. 499, 81 N.W. 1027, 82 N.W. 534, 48 L.R.A. 830, 80 Am.St.Rep. 54. In order to constitute adverse possession against the title of the true owner, an adverse claim must be sufficiently open and obvious both as to the fact of possession and its real adverse character to apprize the true owner if in charge of the property and in the exercise of reasonable diligence of the fact and of an intention to usurp the possession of that which in law is his own. Kurz v. Miller, 1895, 89 Wis. 426, 62 N.W. 182.

We shall next consider the character of the possession of the plaintiffs as shown by the undisputed evidence. Mr. Drake testified that there was never any fence on the line between the two properties at the west end; that he at no time pointed out to the defendant any post at the southwest corner of what he claimed was the corner of the Bettack property. He said: “I have always known where my corner was, and have never called Mr. Conachen's attention to where I claimed the post was. To my knowledge there was only about ten months in which there was any question about the location of the south line of the Bettack property. I never had a word with the man until this spring. So far as I know there has never been any dispute about this line *** I at no time said anything to Mr. Conachen before this year about the location of that southwest corner of the Bettack land.”

The evidence of Mr. Drake shows without dispute that whatever claim he made was based upon the claim that a line running easterly from the joint in the sidewalk was the true line. There is nothing to indicate that he ever intended to claim any part of the property covered by defendant's deed or exclude defendant therefrom. His claim related to the location of the line and not to any claim of adverse possession. Bettack testified that Drake told him where the boundary line was and that the southwest corner of his property was where the sidewalk joined and that the two trees between the Bettack and Conachen properties were on the property of Bettack. It is undisputed that Bettack in 1928 built a garage which invaded the disputed strip.

We have carefully read the testimony and so far as we are able to discover this is the only act which would indicate to a...

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