Hamachek v. Duvall

• Decision Date: 10 March 1908
• Citation: 115 N.W. 634,135 Wis. 108
• Parties: HAMACHEK v. DUVALL.
• Court: Wisconsin Supreme Court

135 Wis. 108

115 N.W. 634

HAMACHEK

v.DUVALL.

Supreme Court of Wisconsin.

March 10, 1908.

Appeal from Circuit Court, Kewaunee County; Michael Kirwan, Judge.

Action by Frank Hamachek against Joseph Duvall. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action brought under section 3186, St. 1898, to quiet the title to two strips of land in the city of Kewaunee to which the plaintiff claimed title by adverse possession. Many of the facts were undisputed. For many years prior to April, 1880, the defendant owned the whole of government lot 4, a tract of several acres, lying south of the harbor and on the shore of Lake Michigan, in the city of Kewaunee, which tract was bounded on the south by an east and west street called “Ellis Street.” In March, 1880, the plaintiff suffered the loss by fire of a small machine shop which he operated in the city of Kewaunee, and contemplated leaving the city, but the citizens, being desirous of keeping the industry in the city, circulated a subscription paper, and raised several hundred dollars to enable him to build a new shop, and the defendant proposed to donate to the plaintiff a small strip of land from said lot 4 on which to build the new shop. The plaintiff concluded to accept the proposals, and in April, 1880, the plaintiff and defendant, with others, went to the proposed site to stake out the lines of the parcel to be donated. The plaintiff claims that the defendant at this time staked out a parcel commencing in the center of Ellis street 58 feet west of a certain meander post, running north to a point 150 feet north of the north line of Ellis street; thence east to the lake; thence south, along the lake, to the center line of Ellis street; and thence west to the place of beginning. On the other hand, the defendant claims that the boundary agreed on commenced only 29 feet west of the meander post, and ran north only 125 feet from the north line of Ellis street. The strips on the west and north lying between the two disputed lines are the parcels in controversy. The situation will more plainly appear by reference to the following map:

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The plaintiff immediately constructed a shop as indicated in the map which he has used ever since. No deed was executed at the time. The plaintiff claims that he has adversely occupied the disputed strips for yard purposes and for piling materials. The defendant does not deny that the plaintiff has used much of the disputed territory for yard and piling purposes, but claims that such use was permissive only, and not exclusive or adverse. A roadway which has been used for many years by all who desire to use it exists west and north of the plaintiff's building as indicated on the map. Other facts appearing in the evidence will be stated in the opinion. An advisory verdict was taken, which was subsequently adopted by the court with some modifications and additions in its findings. By these findings the claims of the plaintiff as to the location of the original lines were found to be established, and it was further found that the plaintiff had adversely occupied the disputed strips on the west and north, except where the same were encroached on by the roadway shown on the map for more than 20 years prior to the commencement of the action. Judgment establishing the title of the plaintiff to the land so adversely occupied was entered by the court, and the defendant appeals.

Geo. W. Wing (Wigman, Martin & Martin, of counsel), for appellant.

O. H. Bruemmer (L. J. Nash, of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above).

We have carefully examined the evidence, and find no good ground for disturbing any of the findings of fact which were in dispute upon the trial concerning the location of the lines of the original gift, or the character and extent of the plaintiff's possession since April, 1880.

A serious question arises, however, as to the legal effect of certain facts found by the court upon the plaintiff's claim of continuous adverse possession. These facts were not referred to in the preliminary statement of the case, but will now be stated. In the latter part of 1883 one Janda bought a half interest in the property and business of the firm, and a partnership was formed, known as “Hamachek & Janda,” which conducted the business until some time in 1886, when Janda sold and conveyed his interest back to Hamachek, since which time Hamachek has operated the business alone. At the time this partnership was formed no deed had been executed by Duvall to Hamachek, and Janda did not know where the lines were nor where Hamachek claimed they were. In June, 1885, Janda made application to Duvall for a conveyance, and Duvall caused a survey to be made of the premises, and the lines run according to his version of the original agreement, and executed a warranty deed thereof running to both partners, and delivered it to Janda. At this time Hamachek was not in Kewaunee, and knew nothing of the execution of the deed until a few days later, when he returned, and was shown the deed by Janda. The deed was recorded, but Hamachek immediately protested to Duvall that it did not convey all...