Ill. Steel Co. v. Jeka

• Decision Date: 15 November 1904
• Parties: ILLINOIS STEEL CO. v. JEKA ET AL.
• Court: Wisconsin Supreme Court

123 Wis. 419

101 N.W. 399

ILLINOIS STEEL CO.

v.JEKA ET AL.^a1

Supreme Court of Wisconsin.

Nov. 15, 1904.

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

Action by the Illinois Steel Company against Xavier Jeka and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Action in ejectment. The complaint was in the usual form. The defendants pleaded adverse possession under the 10 and 20 year statutes. On the trial it was conceded that plaintiff was entitled to recover unless defendants were, upon evidence establishing their defense of adverse possession. Such evidence tended to, if it did not conclusively, show such possession by them and those with whom they were in privity from some time in 1881 to the commencement of the action February 26, 1896, unless the continuity thereof was broken by John Selin, hereafter mentioned, acquiring of the holder of the record title a leasehold interest in the property. There was a conflict of evidence as to whether such circumstance occurred to carry the cause in respect thereto to the jury. There was evidence on plaintiff's part, supposed by the trial court to be sufficient to carry the question involved to the jury, that Jacob Muza as early as 1873 took possession of the disputed premises in defiance of the true owner and thereafter remained continuously in the actual, hostile, exclusive and notorious occupancy thereof till in 1881, when he sold the same for a trifling sum to John Selin, giving him no paper transfer thereof; and that Selin and those claiming under him continued the adversepossession existing at the time of such transfer until the commencement of this action, by these circumstances: As soon as Selin received the property from Muza he inclosed the same with a fence, built a house thereon and occupied it as a home for himself and family. The condition thus created was continued until some time in 1893 when Selin sold the premises to Joseph M. Konkel, not giving him any paper transfer thereof. Konkel upon so receiving the property took possession thereof and prepared it for use by a tenant. It was occupied accordingly for a short period of time when Konkel sold the property to defendant, Xavier Jeka, not giving him any paper transfer thereof. Jeka upon so receiving the property, took possession thereof and occupied the same till the action was commenced.

The main contention upon the trial was whether there were possessory acts of the disputed premises by Muza sufficient to satisfy the statute as to what is essential to disseise the true owner of land so as to create adverse possession thereof by another, and if there were such acts whether the condition thus created was continued for a sufficient length of time, prior to the commencement of Selin's possession, to make with the period that elapsed thereafter, before the commencement of this action the full period of 20 years requisite to satisfy the statute. Muza did not inclose the premises or put any structure, strictly speaking, thereon. The most the evidence tended to show he did in regard to the premises, is fairly indicated by the following brief summary of his evidence: “I improved the property in dispute from 1872 till I gave it to Selin. I improved it as I could, filling the same with stones and ashes and what I could get. I did that just as for myself. My brother was coming from the old country. I was preparing the premises for him. I did the first filling in 1873. I did filling every year thereafter till I sold to Selin. I cut willows and wheeled ashes and filled in on the property. No one interfered with my work. I claimed to be the owner of the property from the time I commenced filling till I gave it to Selin. I do not know how long the tract of land was or how wide it was. I did not measure it. It was all marsh around where I filled. When I gave the property to Selin it was water and marsh around it. There was a ditch on the property washed out and I filled that. There was water on the property when I transferred it to Selin, but I do not know how deep it was. There was nothing to show just where the boundaries of the property were, till I staked it out at the time of the sale to Selin. It was all marsh when I took possession. I filled it extra because I wanted to fix it up for my brother. I did more on that property than on the rest of the marsh. My brother did not come from the old country so I gave the property to Selin. I staked it out for him at the time. The Selin lot was higher than the rest of the marsh. All the lot was high. I filled it so it was higher.”

There was considerable evidence corroborating the foregoing and much evidence discrediting it, both in Muza's cross-examination and the testimony of other witnesses. There was evidence tending to show that Muza settled near the premises in dispute some time in 1873 and maintained a home there for many years continuously; that the Selin premises were part of a marshy tract of land north of the mouth of the Milwaukee river and between Lake Michigan and the river, called “Jones Island”; that Muza from the time he entered thereon, as aforesaid, assumed, at least, leadership in appropriating the island for residence and other purposes; that he generally, somewhat as an owner would, directed the improvement of the island by filling in low places and protecting the land from inroads by water from the lake.

The jury found, in effect, as follows: When this action was commenced the paper title was in plaintiff. Defendants and their grantors and predecessors in title occupied the premises continuously for more than 20 years before the action was commenced. Such occupancy was actual, open, notorious, exclusive and continuous and reasonably sufficient to attract the attention of the true owner and put him on inquiry as to the nature and extent of his rights. Defendants were in possession of the property when the action was commenced. They did not unlawfully withhold the same from the plaintiff. Judgment was rendered thereon for defendants. Such proceedings were duly taken on behalf of the plaintiff as to preserve for consideration upon appeal the questions discussed in the opinion.

Van Dyke, Van Dyke & Carter, for appellant.

Fiebing & Killilea and M. C. Krause, for respondents.

MARSHALL, J. (after stating the facts).

The foregoing brief statement, it is believed, brings to view all of this case necessary to an understanding of the few questions discussed in the brief of appellant's counsel.

As we understand it, counsel do not expect the case to be examined other than sufficient to enable the court to pass upon their claims that the verdict is unsupported by evidence, which is involved in each of three assignments of error, and that the trial court erred in the admission and rejection of evidence. True, there is an assignment suggesting that improper instructions were given, but no attention is paid thereto in the argument except to refer to the record for the instructions excepted to, and suggest this: “While we submit that in portions of the charge of the court, to which exceptions were taken, as shown in the record, there was error, we will not trouble the court with further discussion of them.” Since there is no antecedent of the words “further discussion of them” and the procedure here, well known to the learned counsel, is that an assignment of error unaccompanied by any argument pointing out the particular matter referred to and giving reasons, or attempting to, why it should be held well taken, is not to be regarded as necessarily calling for examination,--we feel warranted in concluding that it is not expected that we shall search the record, carefully, to determine whether the instructions were, or were not, in all respects, strictly accurate.

The question of whether there was evidence to legitimately carry to the jury the subject of the alleged adverse occupancy of the disputed premises by Muza for several years prior to the commencement of Selin's occupancy thereof, which is a vital point in the case, must be examined in the light of principles stated in previous cases involving similar evidence as to various parts of “Jones Island,” so called. There was a claim of adverse possession by Muza in each of such cases, dependent for its efficiency upon whether his acts were sufficient to disseise the true owner, set the statutory period of twenty years of such condition running and preserve it until it merged into a like condition caused by the acts of another in privity with him. This case seems to have been fairly submitted to the jury in the light of such previous adjudications. Illinois Steel Co. v. Budzisz et al., 106 Wis. 499, 82 N. W. 534, 48 L. R. A. 830, 80 Am. St. Rep. 54;Illinois Steel Co. v. Budzisz et al., 115 Wis. 68, 90 N. W. 1019;Illinois Steel Co. v. Jeka et al., 109 Wis. 449, 84 N. W. 1119;Illinois Steel Co. v. Bilot et al., 109 Wis. 418, 84 N. W. 855, 85 N. W. 402, 83 Am. St. Rep. 905;Illinois Steel Co. v. Jeka et al., 119 Wis. 122, 95 N. W. 97;Illinois Steel Co. v. Budzisz et al., 119 Wis. 580, 97 N. W. 166. See, also, Batz v. Woerpel, 113 Wis. 442, 89 N. W. 516.

No reason is perceived why any question decided in those cases, which is material to this one, should be reconsidered. It is believed that the decisions, there necessarily resulted from sections, 4207, 4213, and 4214, Rev. St. 1898, and elementary principles long and firmly established. The mere fact, if it be a fact, that such principles and the calls of the statutes were somewhat more definitely pointed out in such cases, or some of them, than theretofore, and that some misunderstanding existed by reason of unguarded expressions in previous opinions, here and there, should not be mistaken for the establishment of any new doctrine. It is not infrequent that courts find a very old and familiar rule to have become so involved by mere phrasing thereof, or illegitimate applications of the same, or both, that...