Grell v. Ganser

• Decision Date: 11 October 1949
• Citation: 255 Wis. 381,39 N.W.2d 397
• Parties: GRELL et al. v. GANSER et al.
• Court: Wisconsin Supreme Court

Page 397

39 N.W.2d 397

255 Wis. 381

GRELL et al. v. GANSER et al.

Supreme Court of Wisconsin.

Oct. 11, 1949.

Rehearing Denied Nov. 29, 1949.

Lorin L. Kay, Richland Center, for appellants.

Vernon W. Thomson, Richland Center, Black & Fowell, Richland Center, for respondents.

FAIRCHILD, Justice.

The appellants brought this action claiming that they are the absolute and exclusive owners of all land connected with the S. W. forty up to the line marked by an ancient fence which was built some distance north of an old but now abandoned highway. Thus they claim that the land contribution to the old road came entirely from their premises, and, upon its abandonment, the land again became a part of their property. The appellants are insisting that the fence was placed and exists as a boundary fence.

The respondents disavow that fence line and base their claim to ownership upon a line fixed by a survey of the lines of the section.

It must be conceded that a line can be established by acquiescence of the parties that may differ from a surveyed or true line. Wunnicke v. Dederich, 160 Wis. 462, 152 N.W. 139, and cases cited therein; Husted v. Willoughby, 117 Mich. 56, 75 N.W. 279; Pittsburgh & L. A., Iron Co. v. Lake Superior Iron Co., 118 Mich. 109, 76 N.W. 395; White v. Peabody, 106 Mich. 144, 64 N.W. 41; Jones v. Pashby, 67 Mich. 459, 35 N.W. 152, 11 Am.St.Rep. 589; Note, (1930) 69 A.L.R. 1491. When long continued possession of land up to a line has been acquiesced in by all interested in the ownership of a contiguous piece of land, the boundary thereby established becomes the proper boundary irrespective of the operation of the principles which would otherwise fix and determine their location. A survey establishing a line between adjacent owners will not revive the right of an original owner against an established boundary since all that the survey does is to establish the line and not the title.

In Salmond, Jurisprudence, sec. 106, it is said: 'Possession * * * is the objective realization of ownership. It is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the de jure recognition of one. * * * The two things tend mutually to coincidence.' See, Readings on the History and System of the Common Law, Pound and Plucknett (3d ed.) 639. The doctrine has been followed by the courts not to disturb such long acquiescence in a boundary line. It seems to be the recognized policy of the law to encourage such settlements as a means of suppressing troublesome disputes. Jones v. Pashby, 67 Mich. 459, 35 N.W. 152, 11 Am.St.Rep. 589; 8 Am.Jur. 802.

In his decision the trial court states: 'So far as the evidence is concerned, it appears that the so-called north fence (the fence which appellants contend is the boundary...