Larzelere v. Wood

• Citation: 117 N.W. 1013,136 Wis. 541
• Parties: LARZELERE v. WOOD.
• Decision Date: 20 October 1908
• Court: United States State Supreme Court of Wisconsin

136 Wis. 541

117 N.W. 1013

LARZELERE

v.WOOD.

Supreme Court of Wisconsin.

Oct. 20, 1908.

Appeal from Circuit Court, Langlade County; John Goodland, Judge.

Action by C. H. Larzelere against A. J. Wood. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action of ejectment brought to recover the possession of land 14 rods east and west by 27 rods north and south, situate in the northwest corner of the N. W. 1/4 of the N. E. 1/4, section 10, town 31 N., range 14 E. The complaint is in the usual form, and the answer denies the plaintiff's title, and alleges 10 years' adverse possession by defendant under a written instrument. The plaintiff claims title by adverse possession for 20 years. The action was brought to trial in November, 1907, before the court and a jury. At the close of plaintiff's evidence the court granted a nonsuit, and judgment was entered dismissing the plaintiff's complaint, with costs, from which judgment this appeal was taken.Goodrick & Goodrick, for appellant.

Henry Hay, for respondent.

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

The only question upon this appeal is whether there was any evidence sufficient to carry the case to the jury. The plaintiff sought to establish his title by adverse possession for 20 years. There is evidence that he entered in 1872 and did some clearing; that he agreed with the owner to purchase the property for two loads of hay which he never delivered and never got a deed; that he occupied until 1889, and then went to Antigo. He seeks to make proof of continued adverse possession from 1889 to 1892 by occupancy through his tenants. He swears that he employed his nephew for a year, but there is no evidence that this tenant ever occupied. He next proves that after a year or two he rented the premises to one H. McConley. There is no evidence of when McConley took possession, or how long he continued in possession. After McConley's occupancy, one Theodore Smith took possession, and, so far as the evidence shows, Smith took possession in 1894. He was in possession about two years, and vacated in 1896. Now, as the evidence stands, it would seem that there was a break in the continuity of possession between 1889 and 1892 of one year, and probably more. It also appears from the evidence that plaintiff, soon after he took possession, built a log fence around the property in question, and this fence was there in a patched-up condition in 1889, when he left the property. But there is no evidence that the fence continued until 1892. On the contrary, the evidence is that, before 1892, the property was used as commons for the pasture of the cattle of the neighborhood. The defendant 16 or 17 years before the commencement of this action took possession of the property, and fenced in part of it. This action was tried in November, 1907, so that 16 years before would be in 1891; and it also appears from the evidence that, when defendant took possession, the property had the appearance of having been unoccupied for some time. It therefore appears that before...