Gilman v. Brown

• Decision Date: 19 May 1902
• Citation: 115 Wis. 1,91 N.W. 227
• Parties: GILMAN v. BROWN.
• Court: Wisconsin Supreme Court

115 Wis. 1

91 N.W. 227

GILMAN

v.BROWN.

Supreme Court of Wisconsin.

May 19, 1902.

Appeal from circuit court, Buffalo county; E. W. Helms, Judge.

Trespass by Charles W. Gilman against Orlando Brown. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for trespass quare clausum. The complaint alleged that the defendant willfully, maliciously, and wantonly broke and entered the plaintiff's close, describing it as lots Nos. 1, 2, and 3, in block No. 2, range No. 2 N., range No. 2 W., according to the original village plat of Mondovi. It described the damage with much detail in the way of destruction of fence, shade trees, and shrubberies, and the effect of such damage upon plaintiff's use thereof in connection with his residence thereon as a homestead. The complaint further alleged that the plaintiff, on the day of the trespass, was, and since has been, and now is, the owner and in possession of the described premises, and that the plaintiff and his ancestors in title had been the owners of, and in continuous, adverse, open, and notorious possession and enjoyment of, the premises up to the fence destroyed by defendant, under claim of title, exclusive of any other right, ever since September 13, 1870. The answer, while containing a general denial, proceeded to make allegations obviously limiting and defining that denial, consisting of substantially an admission that plaintiff was the owner of the lots described in the complaint, and an allegation that defendant's wife, for whom he acted, was the owner of lands immediately westward of those lots, and that the controversy grew out of a dispute as to whether the fence destroyed was on the west line of plaintiff's premises, or was some distance west thereof, and that his acts in removing the fence, etc., were done because such fence was on his wife's premises. At the trial the plaintiff proved without dispute that the village plat of Mondovi was made in 1858; that it was marked upon the ground by stakes of a particular description; that a fence was built in the same location as the fence in dispute long before 1868; and that as late as 1869 at least one of the original survey stakes upon that line still existed and corresponded with this fence. He also proved the execution and delivery of a warranty deed to his father in September, 1870, of the lots in question, and the continued occupation thereof as a residence and homestead by his father and his family and by himself, accompanied by intermediate conveyances and descent, from 1870 down to the time of the alleged trespass; the maintenance of the fence in dispute as the line fence and as the limit of the occupation of plaintiff and his predecessors in title to the east and defendant's predecessors in title to the west of it; also that the defendant derived his title from the same original grantor; and that the fence was pointed out to him as the eastward boundary of his purchase at the time thereof in 1892. It was also proved without dispute that in 1886 one Brown, defendant's predecessor in title, expressly agreed upon this fence as the dividing line, in reliance upon which agreement plaintiff's predecessor in title built a barn close up to the fence, which, however, had afterwards been removed elsewhere upon the lot. The court directed a verdict for the plaintiff, submitting only the question of damages to the jury, which they answered in the sum of $325. Defendant moved upon the minutes to set aside the verdict and grant a new trial, and afterwards, before judgment, made a second motion for new trial on the ground of newly discovered evidence. Both motions were overruled, and judgment entered for the plaintiff upon the verdict, from which the defendant appeals.C. M. Hillard, for appellant.

S. G. Gilman, for respondent.

DODGE, J. (after stating the facts).

We shall not find it necessary to consider all or many of the very numerous positions discussed by appellant, for the action of the trial court in directing a recovery in plaintiff's favor reduces the question on appeal to much simplicity. It is merely whether undisputed evidence established plaintiff's right and defendant's trespass. We may at once turn to consideration of plaintiff's right.

Mere possession suffices to support action of trespass against one other than the owner or authorized by him. Plaintiff's possession was uncontroverted, but, as the measure of damages permitted exceeded that applicable to a mere temporary possession, we must examine further as to question of title more permanent in character. The plaintiff did not attempt proof of a complete chain of paper title from the government, but rested with proof of a deed to his father of the specified lots in 1870, devolution of that title upon the father's death in 1880 to his heirs at law, and conveyance by them to plaintiff in 1897, with proof of inclosure, cultivation, and actual defined occupation back to the disputed fence from the first deed. The last deed expressly included all land east of that fence. He was probably induced to omit earlier conveyances by a construction of the answer, which both he and the trial court adopted, as admitting plaintiff's ownership of the lots, while denying that the strip invaded by defendant was included within them. Such construction is quite within the bounds of reason, and we by no means repudiate it, though we do not find its adoption necessary to concurrence with the result reached. We shall discuss the case as if complete chain of paper title had not been proved. It is established that for nearly 30 years plaintiff and his predecessors have occupied lots 1, 2, and 3 under a written conveyance thereof which marks their occupation as that of sole and exclusive owners, adverse to all the world. Hence the true line of those lots was a proper subject of inquiry. That such true line, as run and marked on the original survey, corresponded with the disputed fence, was proved by undisputed testimony that such fence had originally been built while the survey stakes were standing, and that it was at a later time observed to correspond with at least one of those stakes located on the same line. Such evidence is hardly to be overcome after lapse of so long time. City of Racine v. J. I. Case Plow Co., 56 Wis. 539, 14 N. W. 599; Same v. Emerson, 85 Wis. 80, 55 N. W. 177, 39 Am. St. Rep. 819. It was not overcome by evidence of measurements made...