Ill. Steel Co. v. Bilot

• Decision Date: 19 March 1901
• Citation: 109 Wis. 418,85 N.W. 402
• Parties: ILLINOIS STEEL CO. v. BILOT ET AL.
• Court: Wisconsin Supreme Court

109 Wis. 418

85 N.W. 402

ILLINOIS STEEL CO.

v.BILOT ET AL.

Supreme Court of Wisconsin.

March 19, 1901.

Syllabus by the Judge.

1. A prima facie paper title in plaintiff, established in an action of ejectment, does not entitle him to recover as a matter of law in the face of evidence tending to show that the premises in controversy are not subject to private ownership because of being part of the bed of a lake.

2. Though the government survey and plat of premises in controversy shows them to be upland, and the mapping thereof into lots and blocks by a person claiming to be the owner indicates the same, the physical situation, as to whether such premises are or are not a part of the bed of a lake, will prevail.

3. It is not necessary that a particular locality should be wholly covered by water constantly, or be covered sufficiently to be susceptible of navigation, to give thereto the character of a lake bed as regards title thereto. If a body of water is not a river, yet is reasonably constant in character, it is a pond or lake, and the limits thereof are the natural shore though water does not constantly stand at that point.

4. If a plaintiff in ejectment establishes prima facie paper title to the locus in quo, he is not entitled to recover as a matter of law in the face of evidence tending to show that the premises are submerged by water and are appurtenant to a shore the title to which has been devested from the true owner, so called, by adverse possession.

5. The elements of actual possession necessary to draw to it constructive possession, when an adverse claim to real estate is founded on color of title under section 4211, Rev. St. 1898, are the same as actual occupancy under section 4213, Id., as construed by section 4214, Id., though the evidence deemed sufficient to establish occupancy under the latter sections may not be so deemed under the former, the circumstance of color of title being of itself significant as to the nature of the possession.

6. The only substantial difference between adverse possession under section 4211, Rev. St. 1898, and such possession under section 4214, Id., is that under the former actual possession is extended by construction to the limits of the land described in the paper conveyance or judgment constituting the basis of color of title, while under the latter the adverse claim is limited by the actual adverse occupancy.

7. When unexplained actual occupancy for the requisite length of time has been clearly established, either under section 4211, Rev. St. 1898, or sections 4213, 4214, Id., the presumption of seisin in the true owner within such time disappears, and the presumption that the requisites of adverse possession have been complied with by the occupant arises under section 4210, Id.

8. No particular kind of inclosure, nor any inclosure, is required to establish adverse possession as a matter of fact under section 4214, Rev. St. 1898; but if such an inclosure is relied upon to establish such possession as a matter of law, it must be of a substantial character, though not necessarily artificial, so as to be effective as a protection against outside interference in adapting the premises to some suitable use.

9. If a usual improvement is relied upon to establish adverse possession, an inclosure of any character, partly or wholly marking the boundary claimed, or any other method of clearly defining such boundary, accompanied with circumstances satisfactory to a jury to establish the essential facts, is sufficient.

10. A usual improvement, within the meaning of section 4214, Rev. St. 1898, does not require improvement of the land in value, but any actual use thereof to which it is adapted and to which the owner or one claiming to be the owner might reasonably devote it. Occupation of a locality for a burial lot, or some other purpose that would partially or wholly destroy its value, may be as effective an improvement as any other, according to the circumstances.

11. What will constitute actual possession in the sense of being a usual improvement of real estate within the meaning of section 4214, Rev. St. 1898, varies according to the character of the land, its location, and all circumstances bearing on the question. That there must be a usual improvement, where that is relied upon, is a matter of law; what is such an improvement is a matter of fact.

12. Continued, exclusive, notorious use of premises covered by water for the purpose of hunting and fishing, with other circumstances, may tend to establish adverse occupancy so as to carry a case to the jury, under proper instructions, to say whether there was such an occupancy as to constitute disseisin of the true owner.

13. Actual occupancy of premises, so as to indicate at every instant of time, by mere observation, the extent of the hostile use, is not necessary to satisfy section 4214, Rev. St. 1898. It need be only such continuous, exclusive, hostile use as in the judgment of the jury, under all the circumstances, is sufficient to notify the true owner, actually or constructively, of the invasion of his rights and the actual extent thereof.

On application for rehearing. Denied.

For former opinion, see 84 N. W. 855.

MARSHALL, J.

The argument on the motion for a rehearing has received that consideration which the learned counsel for respondent earnestly invoked for it, without our being able to indorse the reasons assigned for changing the judgment entered, though such reasons are urged with such earnestness and confidence that a departure from the usual course in disposing of such matters, by the filing of an opinion pointing out what appears to be the weakness thereof, seems advisable.

As a preface to what we shall say it seems proper to make a few observations in respect to the right attitude of counsel, so unfortunate as not to have their side of a controversy viewed here as they view it, on the first presentation of their case, in measuring the situation in which the adverse judgment places them and solving the question of whether a further effort here should be made or not. The situation of counsel at such a time, especially where great interests are involved, and the decision disappoints hopes born of a careful study of a subject, is well suited to test to the utmost that power of calm consideration of the reasons and authorities, supposed to lead up to and require the adverse decision, necessary to enable a person to give due weight thereto. But, as said on a similar occasion (Brown v. Railway Co., 102 Wis. 151, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579), whether counsel stand the test or not, the duty of this court, to carefully and dispassionately reconsider a determination of old questions in the light of old and new reasons, and to do the same as to any new point advanced which was overlooked by counsel on the first presentation, uninfluenced by any other consideration than that of a desire to discover and pronounce the law correctly, remains the same. It is hoped and believed that the learned counsel's second argument has received that consideration. Whether such argument indicates that it was presented and guided by the state of mind necessary to properly weigh an adverse decision may best be judged by the reasons advanced to disturb it and the support thereof pointed out for consideration.

The opening pages of counsel's argument are devoted in the main to a personal vindication and a vindication of the trial court, the excuse being kindly made at the start, for the treatment of the case by this court which calls for such vindication, that it was characterized by haste as a result of press of business. Whatever the motive of the learned counsel--and we will not indulge in the idea nor doubt at all but that it was worthy--the intimation that the case did not receive proper consideration here because of press of business, though made and repeated in such a way as to challenge reflection, is one that a person, conscious of the full scope of its meaning, will not make at all unless he desires to say that judicial duty has not been properly performed. We are safe in saying that counsel does not intend to say that. Yet, as it seems, haste, strictly so called, in work so important, is not excusable by pressure of business. It is not understood here that pressure of business is any excuse for a hasty consideration and disposition of the rights of any one. If that supreme virtue, charity, moved counsel to assign the weight of the burden resting here as an excuse for haste, it should be understood that there is no one here who believes that the mantle of such virtue reaches far enough to accomplish counsel's purpose. Here is centered the last hope of every party conceiving himself aggrieved in a trial court for the ultimate attainment of justice, and every one here, it is believed, is fully conscious of that fact and aims to labor with the deliberation and patience and industry and courage necessary to discover and determine the truth both as to the law and the fact, blind to the effect thereof upon counsel or courts that had first to do with the matter, or the effect upon particular parties, whether high or low, devoting all the time requisite to that end, unconscious, for the time being, of any interfering burden. The learned counsel whose work we now have before us, being thus informed, will of course not ground the reargument of a case hereafter upon any assumption of excusable haste by this court in deciding it at first.

Counsel complain because in the former opinion it was suggested that on the next trial an effort be made to establish all the facts that are material in the light of the legal principles discussed, and that such principles be kept clearly in view from the beginning to the end of the trial; that the particular location of the property in dispute be indicated with reference to the original and present shore line of Lake Michigan. They say much evidence was introduced...