Ill. Steel Co. v. Paczocha

• Decision Date: 26 January 1909
• Citation: 139 Wis. 23,119 N.W. 550
• Parties: ILLINOIS STEEL CO. v. PACZOCHA ET AL.
• Court: Wisconsin Supreme Court

139 Wis. 23

119 N.W. 550

ILLINOIS STEEL CO.

v.PACZOCHA ET AL.

Supreme Court of Wisconsin.

Jan. 26, 1909.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by the Illinois Steel Company against Joseph Paczocha, Sr., and others. Judgment for defendants. Plaintiff appeals. Affirmed.

Action of ejectment commenced July 1, 1907, to recover a tract of land on Jones Island, claimed by the defendant to have been held by himself and privies in adverse possession for more than 20 years prior to the commencement of the action. The premises are the same tract of which a part was transferred by this defendant to Michael Jeka, and involved in Illinois Steel Co. v. Jeka, 119 Wis. 122, 95 N. W. 97, though the evidence in this case is not identical with that in the Jeka Case. Upon the trial plaintiff's paper title was admitted. The defendant, to establish adverse possession, proved that one John Steen built upon the tract in 1875 and inclosed it, asserting ownership of it. The lot was largely under water, and was gradually filled to above the surface throughout the possession of all parties named. Steen indicated the limits of his possession by fences and what are called “docks.” After moving into the house as his homestead, in the fall of 1876 he died, leaving his widow, Eva Steen, and a young son, who continued to occupy and improve the premises, except that the son at times went to board with relatives living in other parts of Milwaukee. Eva Steen married August Cenova in September, 1877, and they resided together upon the premises until 1884, when she sold the premises to one Adam Paczocha, a son of the defendant, who had not then reached Milwaukee, for the latter. The possession of the premises, however, did not change until two or three weeks later, when, defendant having arrived, Eva Cenova and her husband delivered over the possession not only of the dwelling house, but of the barns and outbuildings, the garden, and all included within the fences which had marked the previous occupancy, to the defendant, with the statement that such was the property which Adam Paczocha had bought for him. Thereafter Joseph Paczocha made his home with his family upon the premises; Mrs. and Mr. Cenova boarding with him for several weeks thereafter. Paczocha gave permission to his son-in-law, Michael Jeka, and also to his son, Joseph Paczocha, Jr., to build houses on the original premises, which, with the ground they stand on, are not included in the present action. He continued residence upon the premises up to about 1895, and since then has leased them to tenants. An attempt was made to show taking of a lease by Eva Steen after her first husband's death in 1876 from the predecessor in title of the plaintiff. The jury, by a special verdict, found (1) that John and Eva Steen commenced occupancy of the premises described in the complaint more than 20 years before the commencement of the action; (2) that Eva Steen did not sign or authorize the signature of the lease from the Wisconsin Iron Company; (3) Joseph Steen did not at any time before the sale to Paczocha abandon the premises with the intention of surrendering possession thereof; (4) that Eva did not hold to the exclusion of Joseph; (5) that defendants and their predecessors usually cultivated or improved the premises continuously for a period of 20 years or more immediately preceding the commencement of the action; (6) that defendants and their privies, John Steen, Eva Steen, Joseph Steen, Eva Cenova, and August Cenova, have for more than 20 years next prior to July 1st occupied the premises by such actual, open, notorious, exclusive, and continuous possession as such premises were adapted to and that was reasonably sufficient to attract the attention of the true owner and put him on inquiry; (7) that the defendants at the time of the commencement of the suit were in possession; and (8) that they did not unlawfully withhold from the plaintiff the possession. Whereupon, after various motions attacking the verdict, judgment was entered for the defendants, from which the plaintiff brings this appeal.Van Dyke & Van Dyke, Kronshage, McGovern & Fritz, and John H. Paul (Walter D. Corrigan, of counsel), for appellant.

Fiebing & Killilea (Moritz Wittig and Henry J. Killilea, of counsel), for respondents.

DODGE, J. (after stating the facts as above).

The first error assigned raises the sufficiency of evidence to establish privity between the several possessors so that their possessions may be tacked. The subject of privity has been so frequently and elaborately treated in nearly all points of view within a few years past that we can hardly hope that more words can make plain the principles to one who misunderstands those already uttered. One mistake in which appellant seems to persist is that the privity in question has some relation to title, and that claim of title has some relation to possession. Neither is in any material sense correct. The question is purely one of physical possession, except for the case of actual subordination to the true owner. If there has been that physical possession, it matters not what nor how varied the claims of title set up meanwhile, nor, indeed, the absence of any. The privity between successive occupants required for the statute of limitations is privity merely of that physical possession, and is not dependent on any claim, or attempted transfer, of any other interest or title in the land. Bishop v. Bleyer, 105 Wis. 330, 81 N. W. 413;Illinois Steel Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54;Illinois Steel Co. v. Jeka, 119 Wis. 122, 95 N. W. 97;Illinois Steel Co. v. Budzisz, 119 Wis. 580, 97 N. W. 166;Clithero v. Fenner, 122 Wis. 356, 99 N. W. 1027, 106 Am. St. Rep. 978;Closuit v. Arpin, 130 Wis. 258, 110 N. W. 222. Counsel's confusion is illustrated by his quotation from the Budzisz Case, 106 Wis. 515, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54: “The calls of a deed * * * limit the right as matter of law.” But they do not limit the fact; and, if the fact of possession persist through the appointed time, new rights grow up. If the possessions join by delivery from predecessor to successor, there is no opportunity for the true owner to become seised, and, after 20 years' submission to such inability, he becomes barred by section 4207, St. 1898, irrespective of the terms of section 4215, St. 1898. Possession and voluntary transfer thereof are physical facts provable by the testimony of an eye or ear witness or any other evidentiary fact or conduct. The only qualification to the possession is that it must be such as to exclude the true owner; not derived from or in subordination to him. The only essential of the transfer is that the predecessor passes it to the successor by mutual consent, as distinguished from the case where a possessor abandons possession generally, and another, finding the premises unoccupied, enters without contact or relation with the former, as in Larzelere v. Wood (Wis.) 117 N. W. 1013. Such are the rules declared and enforced by the above decisions of this court, and it is but misdirected industry to quote from or cite our own earlier utterances, or those of other courts, in apparent derogation, which are either overruled or discredited, of which confessedly there are some.

Considering the evidence in light of these rules, we find: John Steen built the house, inclosed the premises so as to mark limits of possession, and moved into the house with his family, and later died. His family, consisting of wife and minor son, remained there, continuing to occupy the premises as a home, and to exercise all acts of ownership and improvement thereon. Privity between them and John Steen is, of course, clear. Mielke v. Dodge (Wis.) 115 N. W. 1099. Their occupation continued not adverse to each other, but clearly excluding possession by any one else. The evidence is that Eva, while admitting rights in the property in John, her son, set up rights at least of occupancy in herself, which she would, of course, have if her deceased husband's claim of ownership had been well founded. Mielke v. Dodge, supra. But, at any rate, she had full possession, just such as an owner would exercise. The next transfer of possession was in 1884, when Eva Steen, then Cenova, surrendered possession to the defendant. She at that time surrendered to him the whole premises, including the house with outbuildings, garden, fences, etc., and she accompanied that act by the statement that that was the property which had previously been sold to his son for him. Not only was there no break or interruption of occupancy, but Paczocha went in before Eva Steen went out; she and her husband remaining as boarders for several weeks. This presented a clear case of the joining of possessions; the incoming occupant taking by consent immediately from the preceding occupant, with no possibility for an intervening disseisin. Illinois Steel Co. v. Jeka, supra; Clithero v. Fenner, supra; Closuit v. Arpin, supra. It must be remembered that on this occasion there was no attempt at any written expression of the understanding or intent with which the physical change of possession was made. And, even if there had been, the acts of the parties would still have been so clearly significant of a mutual purpose to transfer the possession of the whole premises as to establish that fact notwithstanding there had been a written conveyance at the same time of some limited portion of, or title in, them. Id. Since that event it is practically undisputed that the defendant, by himself and tenants, has continued the actual possession and enjoyment of the whole premises so received from Eva Cenova with acts of improvement and domination such as to suggest ownership. This evidence is well-nigh conclusive of privity of possession, but for the purpose of this assignment of error it need only tend to establish such fact,...