Bishop v. Bleyer

• Decision Date: 09 January 1900
• Citation: 81 N.W. 413,105 Wis. 330
• Parties: BISHOP v. BLEYER ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 330

81 N.W. 413

BISHOP

v.BLEYER ET AL.

Supreme Court of Wisconsin.

Jan. 9, 1900.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Frank Bishop, Jr., against Julius Bleyer, guardian of Frederick A. Heise, an incompetent, and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Ejectment to recover possession of the east 7 57/100 feet of the south one-third of quarter block 11, in the First ward of the city of Milwaukee, Wis. Answer that the defendant Heise has been in the open, visible, notorious, and exclusive possession of said land, under claim of title, exclusive of any other right, for more than 43 years last past. The answer also sets up the 20-years limitation, as prescribed by section 4220, Rev. St. 1898. The jury found by special verdict, among other things, that plaintiff was the owner of the legal title to the disputed strip; that the defendant Heise was in possession, and had been for more than 20 years prior to the commencement, claiming title hostile to the owner of the legal title, which occupation had been continuous and exclusive of any other right, including the right of the plaintiff and his grantors. There was also a finding as to the location of a division fence by the adjacent owners with intent to make it a permanent line between them, which had been lived up to, and permanent improvements made with reference thereto and in reliance thereon. Plaintiff moved for a new trial, and defendant for judgment in his favor. Judgment was finally entered in favor of the defendants, from which the plaintiff has appealed.

John S. Maxwell, for appellant.

Quarles, Spence & Quarles, for respondents.

BARDEEN, J. (after stating the facts).

In March, 1853, the defendant Heise purchased a piece of land described as the west 60 feet of quarter block 12. Plaintiff's land in quarter block 11 lies immediately to the east. Before his purchase, defendant was shown the tract as being inclosed by fences which were supposed to surround the tract he purchased. He was put into possession of a tract 60 feet wide, being the land included between the fences, and continued in such possession up to the time this suit was brought, claiming title thereto. Some time later, Mrs. Pemberthy, who occupied the tract to the east, had a survey made, and it was found that three posts of Heise's fence was about three inches over the line, and which were moved to correspond to the line established by her survey. During all these years the defendant has been in the open, visible, and notorious possession of the land included between the lines of his fence, supposing that this was the land conveyed by his deed, and claiming title thereto hostile to every other right. These facts are conclusively shown by the evidence and found by the jury. There was no attempt on the part of plaintiff to explain this possession; no effort to show that it was permissive or subservient to any paramount right. The only thing in the case bearing on this question is found in the defendant's cross-examination, wherein he is made to...