Closuit v. John Arpin Lumber Co.

• Decision Date: 08 January 1907
• Citation: 110 N.W. 222,130 Wis. 258
• Parties: CLOSUIT ET AL. v. JOHN ARPIN LUMBER CO.
• Court: Wisconsin Supreme Court

130 Wis. 258

110 N.W. 222

CLOSUIT ET AL.

v.JOHN ARPIN LUMBER CO.

Supreme Court of Wisconsin.

Jan. 8, 1907.

Appeal from Circuit Court, Wood County; Chas. M. Webb, Judge.

Action by Fred Closuit and others against the John Arpin Lumber Company. Judgment for plaintiffs. Defendant appeals. Reversed and remanded, with directions.

Action in ejectment to recover premises described in the complaint as lot 5 of subdivision of fractional lot 7 of section 8, township 22 north, and range 6 east, according to Sargent's plat of the city of Grand Rapids, containing about 2 1/2 acres. Defense was general denial, and pleas of the 10 and 20 years' statutes of limitation, based upon alleged possession by the defendant and its predecessors in title up to the time of commencing suit. It appeared that there were two government lots in section 8, namely, lot 8 and lot 7, the north line of lot 8 and the south line of lot 7 being the one-eighth section line. Defendant and its predecessors in title hold a chain of conveyances to the north part of lot 8. The premises described in the complaint are in the south part of lot 7. Defendant's predecessors in title had occupied the lands covered by their conveyances as a pasture, inclosed by a fence, which fence also inclosed the premises now in dispute ever since some time prior to 1875. A somewhat incomplete chain of title from the government to the south part of lot 7, including the land now in dispute, with more, reached Hopkins, Landauer & Friend in 1878, who, however, are not shown to have attempted any actual possession. In May, 1882, these parties received a tax deed from Wood county covering the land in dispute with other lands, which was duly recorded on the same date. Through mesne conveyances the title of Hopkins, Landauer & Friend reached Welcome Hyde, who, on May 11, 1885, conveyed to F. J. M. Closuit a tract of land in the southern part of government lot 7, including with other lands that now claimed. At that time John Arpin held conveyance of the north part of lot 8, and was in possession, using the same as a pasture, the fence around such pasture inclosing the land now in dispute, as hereinbefore stated. There was testimony that in 1885 John Arpin and F. J. M. Closuit had a meeting at which Closuit claimed that the north fence of the pasture was upon his land, and Arpin conceded such to be the fact, and promised that later they would ascertain where the true line was and change the fence thereto. The fence thereafter was repaired from time to time in its old location, and never was changed. F. J. M. Closuit is dead, and the plaintiffs are his heirs at law. John Arpin is also dead, and his executors made conveyance to the defendant according to his previous conveyance, describing merely the north part of lot 8, whereupon the defendant went into possession and used as a pasture all that was inclosed within the fence, including the land now in dispute. The court made no findings upon any of the specific issues of fact, but made a general finding to the effect that the plaintiffs are the owners and entitled to the possession of the premises, and that the defendant unlawfully withholds the same, and has since January, 1900, and that the allegations of the complaint are true and of the answer unproven, but by opinion filed it is indicated that the court reached the conclusion that the possession of defendant and its predecessors in title of this land outside the calls of their conveyances, and to which they had no pretense of paper title, was not adverse to the true owner. Accordingly judgment was rendered in favor of the plaintiffs and against the defendant for possession, and for $25 damages, from which the defendant appeals.Goggins & Brazeau, for appellant.

W. E. Wheelan, for respondents.

DODGE, J. (after stating the facts).

The conclusion reached by the court upon certain of the issues of fact raised by the pleadings is so conclusive of the action as to render unnecessary of consideration several of the other questions, whether of fact or law.

The answer alleges that the defendant and its grantor have been in continuous, open possession under claim of title exclusive of any other right, and now own the premises by virtue of section 4213, Rev. St. 1898; also that the action was not commenced within the time limited by section 4207, Rev. St. 1898. By this last allegation is presented the issue of fact whether plaintiffs or their predecessors in title have been seised or possessed of the land at any time within 20 years from the commencement of the action. There is no finding by the...