Buckner v. Hutchings

• Decision Date: 25 October 1892
• Citation: 83 Wis. 299,53 N.W. 505
• Parties: BUCKNER v. HUTCHINGS.
• Court: Wisconsin Supreme Court

83 Wis. 299

53 N.W. 505

BUCKNER

v.HUTCHINGS.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.

Action by John Buckner against William H. Hutchings for possession of a certain strip of land. From a judgment and decree for defendant, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This action was brought to recover possession of a strip of land 1 1/2 rods wide, described in the complaint by metes and bounds, to and from a certain farm of 51 acres of land belonging to the plaintiff, the plaintiff alleging that he is the owner in fee simple of the strip of land claimed. The answer was a general denial. It appeared: (1) That one Margaret Putnam, formerly Margaret Hutchings, died seised of the tract of 51 acres, and “also a strip of land 1 1/2 rods wide, as and for a right of way to and from said fifty-one acre tract, commencing,” etc.; “which strip is a right of way through and over lands owned by William H. Hutchings.” (2) That deceased left three children, namely, Mary M. Howie, Samuel E. Hutchings, and said William H. Hutchings, as her only heirs at law, all upwards of 23 years of age; and the county court decreed and set over the land and right of way to them as tenants in common. A partition suit was subsequently brought in the circuit court, in which Mary M. Howie and Samuel E. Hutchings and wife were plaintiffs, and the said William H. Hutchings, the defendant in this action, was defendant. The complaint set out the title of the parties in substance as hereinbefore stated, and prayed for a partition. The defendant, William H. Hutchings, answered the complaint, admitting its allegations, but alleging that the premises could be partitioned into three parcels of equal value without prejudice to the interests of the owners. It was adjudged in that action “that the allegations contained in the complaint are true; that the plaintiffs and defendant are the owners in fee and tenants in common of the lands and premises described in the complaint,” each owning in fee an undivided third interest and part thereof, and that the premises should be sold, etc.; and they were accordingly sold under the judgment, by a referee, to the plaintiffs in said suit, Mary M. Howie and Samuel E. Hutchings, and the sale and deed thereof were confirmed. The premises in dispute are described in the referee's deed as “a strip of land 1 1/2 rods wide, as and for a right of way to and from said fifty-one acre tract, commencing,” etc.; “which strip is a right of way through and over lands owned and occupied by William H. Hutchings.” Afterwards, October 5, 1889, the grantees in said deed granted and conveyed to the plaintiff, Buckner, the said premises, together with the strip of land in dispute, describing it as “a strip of land 1 1/2 rods wide, as and for a right of way to and from said fifty-one acre tract, commencing,” etc.; “which strip is a right of way, all in Waukesha county, Wisconsin.” The plaintiff showed no other title to this strip, and the court, on motion of defendant, granted a nonsuit; holding that the evidence did not show legal title in fee in the plaintiff to the strip in dispute, but only a right of way or an easement over it. The court nonsuited the plaintiff, and rendered judgment against him for costs, from which he appealed.

D. H. Sumner, for appellant.

Ryan & Merton, for respondent.

PINNEY, J., ( after stating the facts.)

In the complaint in the partition suit, the premises in controversy in this action are described by metes and bounds, and as “a strip of land one and one half rods wide, as and for a right of way to and from said fifty-one acre tract, * * * which strip is a right of way through and over lands owned and occupied by William H. Hutchings,” the defendant; and in his answer he admitted these allegations of the complaint. In the judgment in the partition suit it was adjudged that the two plaintiffs and defendant “are the owners in fee and tenants in common of the...