Brew v. Nugent

• Decision Date: 29 September 1908
• Citation: 136 Wis. 336,117 N.W. 813
• Parties: BREW v. NUGENT ET AL.
• Court: Wisconsin Supreme Court

136 Wis. 336

117 N.W. 813

BREW

v.NUGENT ET AL.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Crawford County; George Clementson, Judge.

Action by Richard Brew against Susan Nugent and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Ejectment to recover a strip of land 2 feet on the east side, 7 feet on the west side and 150 feet long as a part of lot 12 and the north one-third of lot 17, block 11 of the Union plat of Prairie du Chien. The dispute was as to the location of the south boundary line of lot 12 and north one-third of lot 17.

There was evidence to this effect: A fence, built about the year 1863 displacing a fence previously built, was designed to be located on the north line of lots 12 and 17. None of the original monuments placed to mark the corners of block 11 had existed for many years before the controversy arose. A fence was erected in 1884 50 feet south of the north fence and the two fences were regarded by all parties concerned from the time they were built till about the time of the commencement of the action as marking the north and south boundary of lot 12 and the north one-third of lot 17. There was no proof as to whether the fence displaced as aforesaid was built before or after the platting of the land, which occurred in 1856, and no proof as to what efforts the person who built the fence in 1863, made to locate it, though he testified that he built it on the line as near as he could. The general effect of the evidence was that if the fence erected in 1863 was properly placed the disputed premises were south of the south boundary of plaintiff's land and within the boundaries of defendant's land. Measurements made by a competent surveyor, from monuments supposed by him to be originals set to mark the corners of other blocks than the one in question, located the north line of plaintiff's premises sufficiently south of the fence line of 1863, to show that the south line of such premises was south of the strip of land in dispute and thus indicate that such strip was the property of the plaintiff. There was evidence of some circumstances corroborative of the claim that the 1863 fence was correctly located as well as evidence of circumstances to the contrary. The cause was submitted to the jury so as to turn on whether the old 1863 fence was correctly placed or not. The verdict was in favor of the defendant and judgment was rendered accordingly.Alexander Athey, for appellant.

J. P. Evans, for respondents.

MARSHALL, J. (after stating the facts as above).

The following propositions are affirmed and submitted by appellant's counsel as grounds for a reversal: (1) The verdict and finding that the fence as constructed for the north boundary of lots 12 and 17 some 30 or 40 years before the controversy arose was properly placed is not supported by any credible evidence. (2) The court in instructing the jury gave prejudicial significance, as evidence, to the location and maintenance of the fence referred to. We will consider such propositions briefly.

It is the settled law that in controversies as to the proper locations of corners or boundaries of lots or blocks in platted lands the original location of monuments must prevail, regardless of whether the same coincide with the courses and distances laid down on the plat, and that in determining such locations if such monuments have disappeared they must be established by the best evidence the nature of the situation is susceptible of. So in such...