Ill. Steel Co. v. Budzisz

• Decision Date: 27 April 1900
• Citation: 106 Wis. 499,82 N.W. 534
• Parties: ILLINOIS STEEL CO. v. BUDZISZ ET AL.
• Court: Wisconsin Supreme Court

106 Wis. 499

82 N.W. 534

ILLINOIS STEEL CO.

v.BUDZISZ ET AL.

Supreme Court of Wisconsin.

April 27, 1900.

On motion for rehearing. Denied.

For former opinion, see 81 N. W. 1027.

MARSHALL, J.

It is profitable to have a case of this importance, as regards the principles involved, brought to the attention of the court a second time by a motion for rehearing based on a careful study, by eminent counsel for the losing party, of the reasons given for the judgment rendered. That course, if it does not result in any relief for the moving party, will generally bring sharply to notice any error, either of law or fact, or unsoundness of reasoning, in the opinion filed, that may otherwise remain uncorrected for a sufficient length of time to cause prejudice to the rights of parties in other litigation. If the reasons for the result first reached stand the close scrutiny of counsel, ever ready to seize upon the slightest weakness in an adverse decision as ground for further proceedings, confidence in the soundness of such decision must be materially strengthened thereby. Such has been the result in this instance.

Counsel for appellant suggest a single point, only, in the opinion of the court, wherein they confidently claim error was committed, and that such error is the very foundation stone of the decision adverse to their client. We said: “The mere fact that a person is so circumstanced as regards realty, as to dispossess the owner thereof adversely, does not, till the expiration of the statutory limitation upon the right of such owner to reclaim that possession, vest any estate in lands, within the meaning of section 2302, Rev. St. in such possessor, or the substitution of another in his place, to continue the dispossession of the true owner, the transfer of any such estate. Sections 2302, 4207, Id., the limitation statute, are entirely independent of each other.” From that it is said that if possession of realty is an interest therein, contrary to the quoted language, then it cannot be transferred without compliance with section 2302.

Counsel cite to our attention numerous decisions to support the proposition that possession of land is evidence of an interest therein, and that the law will protect the possessor against hostile invasion of his possession by a wrongdoer. That is elementary. Possession is evidence of an interest in land and of just such interest as the possessor claims, down to the mere naked occupancy by right (Newell, Ej. 367; Ricard v. Williams, 7 Wheat. 105, 5 L. Ed. 398; Jackson v. Porter, 1 Paine, 457, Fed. Cas. No. 7,143), the legal presumption being that a person so circumstanced is acting by right till that is rebutted.

Judge Story said, in Ricard v. Williams, supra: “Title by possession, whatever it may be, rests upon possession; and the nature and extent of that possession must be judged of by the acts and circumstances that accompany it, and qualify, explain or control it. Undoubtedly, if a person be found in possession of land, claiming it as his own, in fee, it is prima facie evidence of his ownership, and seisin of the inheritance. But, it is not the possession alone, but the possession accompanied with the claim of the fee, that gives this effect, by construction of law, to the acts of the party. Possession, per se, evidences no more than the mere fact of present occupation, by right; for the law will not presume a wrong. * * * From the very nature of the case, therefore, it must depend upon the collateral circumstances, what is the quality and extent of the interest claimed by the party; and to that extent, and that only, will the presumption of law...