Lewis v. Prien

• Decision Date: 10 December 1897
• Parties: LEWIS v. PRIEN.
• Court: Wisconsin Supreme Court

98 Wis. 87

73 N.W. 654

LEWIS

v.PRIEN.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action of ejectment by John Lewis against Emelia L. Prien. Judgment for defendant, from which plaintiff appeals. Affirmed.

Action of ejectment. The correct location of the south boundary line of lot 8, block 4, of Brook's addition to the city of Madison, was the disputed question, and that turned on the proper location of the southeast corner of the lot. The following is a diagram of the block, with the property owned by the respective parties and the disputed land designated thereon:

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At the close of the evidence there was a motion by plaintiff's attorneys for the direction of a verdict in his favor, which was denied and the ruling excepted to. The case was submitted to the jury under instructions to which no exception was taken. The finding was in favor of the defendant. Plaintiff's attorneys moved the court to set aside the verdict and grant a new trial, which was denied and the ruling excepted to. Judgment was rendered in favor of defendant and plaintiff appealed.Keyes & Shuttleworth and G. E. Roe, for appellant.

Olin & Butler, for respondent.

MARSHALL, J. (after stating the facts).

Did the court err in refusing the motion to direct a verdict for plaintiff? That depends on whether the evidence was all one way to the effect that when the original survey was made the disputed corner was established and the stake set at the point claimed by appellant. The invariable rule governing such cases is too well known to need more than a statement of it here, were it not for the fact that the force of such rule does not appear to be appreciated by the learned counsel for appellant. When a motion is made to direct a verdict for one party, the court is called upon to say, taking all the evidence produced, giving thereto the most favorable inferences it will reasonably bear, and admitting that it establishes what it tends to establish, whether it will sustain a contrary verdict. If so, the motion must be denied. Leiser v. Kieckhefer, 95 Wis. 4, 69 N. W. 979;Lawrence University v. Smith, 32 Wis. 587;O'Brien v. Railway Co., 92 Wis. 340, 66 N. W. 363;Dirimple v. Bank, 91 Wis. 601, 65 N. W. 501. The doctrine that obtains in some jurisdictions, that where the evidence preponderates so strongly one way that in case of a verdict otherwise it would be the duty of the court to set it aside and grant a new trial, a verdict should be directed, has not obtained a foothold here. The rule of this court is in accord with the weight of authority on the subject, including that of the federal supreme court. Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85;Schofield v. Railway Co., 114 U. S. 615, 5 Sup. Ct. 1125; Railway Co. v. Converse, 139 U. S. 469, 11 Sup. Ct. 569,Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835;Railway Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905. Fuller, C. J., in the last case cited, states very tersely the rule iterated and reiterated by this court, thus: “The case should not be withdrawn from the jury unless the conclusion follows as a matter of law from the evidence, that no recovery can be had upon any view which could properly be taken of the facts the evidence tends to establish.” So it is said that the jury, in all cases where there may reasonably be opposing inferences from the evidence, are the exclusive judges to weigh such evidence and draw the proper inference.

As before intimated, the only justification for discussing at so much length the familiar principle above referred to, is that counsel for appellant, in support of their contention that the trial court erred in denying the motion to direct a verdict, do not appear to claim there was no evidence in opposition to their theory, which, if believed, would sustain an opposite theory. The most that is claimed, apparently, is that there was not much such evidence. True, the evidence on the part of the plaintiff was very positive and clear that the southeast corner stake of lot 8, as it stood at the time of the trial, was in place where located by Douglas, who made the original and governing survey, and the evidence tended strongly to show that the defendant's conduct for years after she purchased and took possession of her property, was more consistent with plaintiff's claim as to the true boundary line than with the opposing claim upon which she relied. But defendant testified that the stake, when she purchased, was upwards of a foot further north than where plaintiff sought to establish the true corner; that subsequently it was removed, and later set in the location alleged by plaintiff to be the proper place, and there was considerable corroborating evidence to the same effect. It was conceded on both sides that the original location of the stake would govern if it could be ascertained, whether consistent...