Dhein v. Beuscher

• Decision Date: 25 October 1892
• Citation: 83 Wis. 316,53 N.W. 551
• Parties: DHEIN v. BEUSCHER ET AL.
• Court: Wisconsin Supreme Court

83 Wis. 316

53 N.W. 551

DHEIN

v.BEUSCHER ET AL.

Supreme Court of Wisconsin.

Oct. 25, 1892.

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

Trespass by Philip Dhein against Sarah Beuscher and others for pulling down and destroying a line fence built by plaintiff. Judgment for plaintiff. Defendants appeal. Affirmed.

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

The plaintiff complained of the defendants for breaking and entering premises May 28, 1891, of which he claimed to be the owner and in possession, being the S. W. 1/4 of the N. W. 1/4 of section 16, etc., and tearing down and destroying a certain fence thereon, to his damage $50. There was a second count, alleging trespass to the plaintiff's crops and fences, three days thereafter. The defendants answered by general denial, and also claiming that the part of the real estate and fence mentioned in plaintiff's complaint upon which the alleged trespass was charged to have been committed was not the real estate and fence of the plaintiff, nor was he then in or entitled to possession thereof, but the same was at the time, etc., the property of the defendant Sarah Beuscher, and in her possession; and that the said several supposed acts of trespass were done or caused to be done by her and her codefendants in and about her own lands in the management of the same, as she might lawfully do. The testimony disclosed the fact that the dispute between the parties was in respect to the proper location of the line, 80 rods in length, between their respective estates. The fence that had originally been built between the two estates, and according to which they had been used and occupied, stood over on the premises, as it was claimed, of the plaintiff, leaving a strip of neary six tenths of an acre in extent claimed by the plaintiff within the inclosure of the defendants' farm. This rail fence had been maintained for 25 or 30 years by the respective parties, their grantors and predecessors in interest, and it was claimed on behalf of the defendants that the defendant Sarah Beuscher and her grantors and predecessors in interest had held said strip of land adversely for more than 20 years, claiming title thereto, and so was entitled to the same, and that, as it was inclosed as a part of her field, the plaintiff was not in possession of it so as to be entitled to maintain an action of trespass, as for breaking and entering his close. The 40-acre tract of land of the defendant Sarah Beuscher was owned by Peter Klumb until August 30, 1855, when he conveyed the same to D. Klumb, who, on the 26th of April, 1864, conveyed to Philip Beuscher, Sr., and he, on the 1st of October, 1870, conveyed the premises to Philip Beuscher, Jr., who, on January 6, 1887, conveyed them to Philip Beuscher, Sr., and he on the same day conveyed them to Sarah Beuscher, the defendant. The proof showed that the grantors and predecessors in interest of the defendant Sarah Beuscher had cultivated and occupied the land up to the fence, which had originally been constructed and continually maintained, and which was supposed at the time to have been built on the line when the land was first cleared. The old line or fence was curved. In some places it was 20 feet, in some 28 feet, and in some 10 feet from the true line. David Klumb testified that he occupied the land claimed by the defendant Sarah Beuscher from 1855 to 1864; that there was a rail fence between this tract and plaintiff's land. The land was cleared about one third the length of the line on one side up to the fence, and he cultivated clear up to the fence, and claimed the land up to the fence all the time he was in possession. He and Dhein, plaintiff's grantor, repaired this fence. Dhein's share was the south part, and Klumb's the north part. The line was surveyed by Brosius twice, and the fence found to be on the line. Philip Beuscher testified that after he bought of Klumb he claimed up to the fence. Dhein owned on the other side, but it was all woods, and no one lived on it. Philip Dhein and his father had possession. “Crops were raised on my side down to the present time. The fence has stood there ever since. My son Philip occupied it in the same manner after I sold to him in 1870. In 1878 he died, and I bought the land, and conveyed it to the defendant Sarah Beuscher, his wife.” When Philip Beuscher, Jr., owned the land, and before he conveyed to the defendant Sarah Beuscher, and on the 11th day of May, 1885, he entered into an agreement with the plaintiff, reciting that the parties thereto “are the owners of adjoining lands,” dividing the line between them, which is described as follows, to wit: “Commencing at a point, being the southeast corner of the southwest quarter of the northwest quarter of section sixteen,” etc.; “from thence running north to the northeast corner of the said southwest quarter of the northwest quarter of said section,--being a distance of eighty rods. Said Philip Dhein is the owner of the land on the west side, and Philip Beuscher, Jr., is the owner of the land on the east side, of said line, and they desire to make partition of said line so as to ascertain and assign to each said owner his portion of the partition fence to be built and maintained thereon.” And it was in and by said agreement agreed that such line “be, and the same is hereby, partitioned and assigned as follows, to wit: The south half thereof, being about forty rods, more or less, shall belong and is hereby assigned to the said Philip Beuscher, Jr., and the north half thereof, being an equal length, shall belong and is hereby assigned to the said Philip Dhein. Both parties agree to keep their fence in good repair.” This agreement was sealed, witnessed by two witnesses, and acknowledged, and filed of record in the office of the town clerk of the town, May 11, 1885. There was a survey made of the line between the premises in May, 1886, by a Mr. Leins, while Philip Beuscher, Jr., owned the premises, and he was present and assisted in making it, and in carrying the chain, when the line was established and found to be as claimed by the plaintiff. This was after the execution of the agreement referred to. Immediatelyafterwards the plaintiff, Dhein, commenced building a fence on the new line, and built and completed about seven or eight rods, and he took down the old fence opposite to where this portion of the fence stood, and this was the condition of things when the defendant Sarah Beuscher bought her property. In the spring of 1891 the plaintiff Dhein built about 30 rods more of post and wire fence on the line, as thus surveyed, between him and the defendant; and testimony was given that about the 28th of May 30 rods of the fence was torn down by the defendants, the posts were taken out, and the whole was thrown on one side; that he rebuilt it again two days thereafter, when it was torn down again, and the posts sawed off. Evidence was given tending to show the damages. The defendants' counsel asked the court to charge the jury that the plaintiff could not recover unless he had actual and lawful possession of the premises at the time when the alleged trespass was committed; that if the defendant Sarah Beuscher was in the actual possession of said lands at the time and place where the trespass was committed, then the plaintiff could not recover. The court refused to so instruct the jury. He also requested the court to charge the jury that, if they found that the old rail fence was erected by a former owner of the land, and consented and agreed to by Philip Dhein, Sr., the father of the plaintiff, and agreed upon as the dividing line between their respective premises in 1853, and that they and the subsequent owners of the said premises actually claimed and occupied the lands on each side of the rail fence continuously for 20 years or more prior to the time when such new fence was placed on the land by the plaintiff, such possession would be adverse, and confer a title in fee by prescription; and that it was immaterial whether this old division fence was built and maintained on the exact line between the adjacent lands or not; that the agreement to divide the line in 1885, after the title in fee had ripened by adverse possession, would not work a change of the old line; but the court refused to so charge. The circuit judge charged the jury that to constitute adverse possession of the premises, the possession must be under claim of title, and be continuous. The premises must be inclosed by an inclosure, or occupied in the usual way of farming lands. That the important question in the case was whether this old rail fence was established as a true line between the parties, or whether it was a matter of convenience in an early day when the ground was covered with timber, and when they were not perhaps as particular. Was it a temporary arrangement until after they could determine the line? The possession, to be adverse, must be under a claim of title. There must be some evidence that the parties agreed upon the old fence as the true line; or did each occupy up to the old fence, claiming title? You are to determine from the evidence whether the old line or fence was intended to be a division between the parties, and a location of the true line, or whether it was a temporary expedient for the time being. That, if they found that the defendant, and...