Duncan v. Rodecker

• Decision Date: 05 March 1895
• Citation: 90 Wis. 1,62 N.W. 533
• Parties: DUNCAN v. RODECKER ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 1

62 N.W. 533

DUNCAN

v.RODECKER ET AL.

Supreme Court of Wisconsin.

March 5, 1895.

Appeal from circuit court, Juneau county; R. G. Siebecker, Judge.

Ejectment by M. F. Duncan against C. W. Rodecker and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

This is an action of ejectment. The premises of which recovery is sought are described in the complaint as “that part of the west one-half (1/2) of lot number twelve (12), in block number fifteen (15), in the village of Wonewoc, * * * lying south of the middle line of a stone wall running east and west across said lot as the same was on the 26th day of February, 1885.” The plaintiff occupies with a brick-veneered building all the land described in the complaint, except a few inches on the north side, which are occupied by a brick building owned by the defendants. So the controversy involves the title and right of possession to only a narrow strip of land, a few inches in breadth at most. One O. F. Lee formerly owned the whole of the west half of the lot described. It is a tract 66 feet square. He had upon it a wooden building 20 feet by 40 feet. Later he erected an addition to that building on its south end, 20 feet by 24 feet. The fourth side to that addition was the end of the original building. There was a stone-wall foundation under the south end of the original building. The south end or wall of the superstructure overhung the stone wall about half its thickness. This wall of the superstructurewas the partition wall between the original structure and the addition. It was of wood, lathed and plastered, and about seven inches thick. Lee sold that part of the lot on which the addition stood to the plaintiff. It was described in the deed as “the south twenty-six (26) feet, more or less, of the west half,” etc. Also the undivided one-half of the wall on the line on the north side of the above-described premises. Both building and addition were afterwards destroyed by fire. The plaintiff erected a new building, of which the north wall is 26 feet from the south line of the lot. The building on the north side stands about one foot south of the original stone foundation. After plaintiff's new building had been erected, Lee sold the remainder of his lot to the defendants, who built a new brick building upon it. The south wall of the new building is built substantially upon the old foundation. The action is to recover one-half of the land upon which that foundation stands. It was considered by the trial court that the deed of Lee to the plaintiff conveyed to him the land up to the center of the wall, and that “the center of the wooden wall is the one referred to.” In this view the court held that it appeared that the defendants' building stood three inches and a half upon the plaintiff's land, and directed a verdict for the plaintiff in accordance with that view. That view seems to have been acquiesced in by the plaintiff. From a judgment on that verdict the defendants appeal.

F. S. Veeder and H. W. Barney, for appellants.

James A. Stone, for respondent.

NEWMAN, J. (after stating the facts).

The deed of conveyance from Lee to the plaintiff, as explained by the oral testimony showing the situation, seems to have been intended to convey to the plaintiff the land upon which the addition stood, up to the line of the original building, with such interest in the south wall of the original building as was necessary for the support of the building conveyed to the plaintiff, and for a partition wall between the two possessions. The description, “the south twenty-six feet, more or less,” was intended to describe all the land upon which the addition stood, up to the south line of the original building. It was not intended to include any part of the original building, or of the land upon which it stood. If the deed had been altogether silent as to the wall, it is probable that an interest...