Graeven v. Devies

• Decision Date: 01 March 1887
• Parties: GRAEVEN v. DEVIES.
• Court: Wisconsin Supreme Court

68 Wis. 317

31 N.W. 914

GRAEVEN

v.DEVIES.

Supreme Court of Wisconsin.

March 1, 1887.

Appeal from circuit court, Milwaukee county.

Action to recover possession of a strip of land, brought by Frederick Graeven, appellant, against Carlotta Devies, respondent.Weil & Killilea and D. S. Roe, for appellant.

Austin, Runkle & Austin, for respondent.

COLE, C. J.

It is not claimed or pretended that the plaintiff showed any paper title to the strip of land in controversy. The deed from Seligman to Kriege, and the one from Kriege and wife to the plaintiff, dated March 19, 1880, conveyed the west 25 feet of lots 1, 2, and 3, in block 102. The piece of land sought to be recovered lies outside of the premises described in these deeds, and is an irregular strip west of the west boundary line of such premises; being eight inches wide on the north end, and four inches wide on the south end. The plaintiff attempted to prove title to this disputed strip by adverse possession. His contention is that the evidence clearly showed that he and his grantor, Kriege, had been in the adverse possession and occupancy of such strip, in hostility to every other claim of title, for more than 26 years before the commencement of the action. Consequently he established an indefeasible title to it under the statute. The provision relied on declares, in substance, that when there has been an actual continued occupation of any premises under claim of title exclusive of any other right, but not founded upon any written instrument or judgment or decree, the premises so actually occupied shall be deemed to be held adversely, (section 4213,) and, after 20 years of such possession, the title shall be deemed to have ripened into a perfect title. This is the effect of the various provisions relating to this subject.

As we have said, there is no pretense that the plaintiff showed any paper title to the disputed strip, but he claims it by actual adverse possession under a claim of title for a sufficient period to bar the true owner. The evidence as to the occupancy of the strip under claim of title is exceedingly confused and obscure, and it is not very easy to get at the meaning of the witnesses. The important testimony as to these facts is that of Kriege; and, if we understand it correctly, the effect of his statements may fairly be said to be this: In 1859 he purchased the west 25 feet of lots 1, 2, and 3, block 102, of Seligman, and went into possession. He occupied the property for 21 years. In 1880, he sold the property to the plaintiff, and gave possession. The plaintiff has occupied it to the time of trial. When Kriege purchased the property, there was a frame building on a brick basement in front. There was a brick house in the rear. Kriege took down the old frame house, and built a new frame house in front on the old foundation that was on the west side. The defendant then occupied the adjoining property on the west. Kriege testified that the plaintiff “occupied the same property I had. I occupied 4 inches more on the west side. * * * All I know, he claims 4 inches more than I would. For the 21 years I lived there, I used the 8 inches in controversy described in the complaint. I used it until I sold to Mr. Graeven in 1880, and Graeven occupies the same property now.” On cross-examination the witness said: “I occupied under my deed 25 feet. I bought those 25 feet from Seligman,--the same premises described in the deed.” The plaintiff testified, and said: “I have occupied these premises since 1880. Kriege occupied them before me. I bought the premises of Kriege. He did not say there was anything wrong about them, and I occupied them. I have built the bake-oven, and attached the back building to it. I built the bake-oven on the same building. The wall between my property and Mrs. Devies remained the same. Mrs. Devies is in possession of the property west...