Donahue v. Thompson

• Decision Date: 15 May 1884
• Parties: DONAHUE v. THOMPSON.
• Court: Wisconsin Supreme Court

60 Wis. 500

19 N.W. 520

DONAHUE

v.THOMPSON.

Supreme Court of Wisconsin.

Filed May 15, 1884.

Appeal from circuit court Manitowoc county.

J. S. Anderson, for respondent, Jere. Donahue.

G. G. Sedgwick, for appellant, Halvor Thompson.

ORTON, J.

The material question in this case is one of boundary between lot 3, claimed by the defendant, and lot 6, claimed by the plaintiff, in block 111, in the city of Manitowoc. The plaintiff obtained a warrant for the arrest of the defendant upon an affidavit charging him with breaking and entering upon lot 6, the close of the plaintiff and in his possession, and doing damage thereon. On the return before the justice the plaintiff filed his complaint charging that the defendant wrongfully entered the premises of the plaintiff and tore down fences, injured the grass, trees, and shrubs, and did other damage thereon. The defendant answered by a general denial, and alleging title in himself to the locus in quo. Thereupon the cause was removed to the circuit court, because the title to the land was in question. The action was commenced in April, 1882, and the trespass is alleged to have been committed on the twentieth day of said month. The cause was tried in the circuit court before a jury, and the court directed a verdict for the plaintiff of nominal damages.

The facts are not disputed, so far as the entry upon the locus in quo, and the several ownership and possession of the plaintiff of lot 6, and of the defendant of lot 3, in block 111, contiguous to each other on an east and west line, are concerned. The defendant admitted that he entered upon the disputed strip and put up a fence on its south line, and removed a fence, or the remnant of a fence, from the north line of such strip, which constituted the alleged trespass, and defended on the ground that he put up such fence on the true line between lot 3 and lot 6. It is true, the defendant attempted to show title to lot 3 by a tax deed, concerning which several questions were raised, but it was quite immaterial, as there was no contest whatever about the title of the lots, but only of their boundary. In order to show such boundary the plaintiff introduced evidence which tended strongly to show that one Edwards, his grantor, went into the possession of lot 6 in 1857 or 1858 under color of title, and, jointly with the occupants of the adjoining lots on the north, established what was then supposed to be the true line, east and west, between them, and built a fence thereon, and dug a well in common on the same, and that Edwards built a barn near such line, or so that the fence came within a few inches of one corner of the barn, and somewhat over one foot at the other corner north of the barn. This barn was so located that about one-half of it is adjacent to lot 4 and the other half adjacent to said lot 3....