Litel v. First Nat. Bank of Or.

• Decision Date: 17 July 1928
• Citation: 196 Wis. 625,220 N.W. 651
• Parties: LITEL v. FIRST NAT. BANK OF OREGON, WIS.
• Court: Wisconsin Supreme Court

196 Wis. 625

220 N.W. 651

LITEL

v.FIRST NAT. BANK OF OREGON, WIS.

Supreme Court of Wisconsin.

July 17, 1928.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmermann, Judge.

Action by J. F. Litel against the First National Bank of Oregon.Judgment for the plaintiff, and the defendant appeals.Affirmed.--[By Editorial Staff.]

Owen and Stevens, JJ., dissenting.

This action of ejectment was commenced July 13, 1926, by plaintiff, owner of record title to lot 3 in block 1 in Bedford's addition to the village of Oregon, said county, to recover possession of about 3.13 feet claimed to be covered by a building of the defendant, a national banking corporation, and record title owner of lot 4.Trial in January, 1927; and, upon the verdict, judgment was rendered February 25, 1927, in favor of the plaintiff, for possession and $360 damages and costs.From such judgment, defendant appeals.

The question here is as to the true line between lots 3 and 4.The original plat in 1866 of this block showed it on the west side of Main street and on the north side of West street; the latter being then a long-established territorial highway.The two streets intersect at an obtuse angle.An alley ran along the west line and another on the north line of block 1.Lot 1 abutted on West street to the south, and was shown with 48 feet north and south frontage on Main street, but narrower on the west end.Lot 2 had a 24-foot and lots 3, 4, 5, 6, and 7 each had a 26-foot frontage on Main street; lot 7 abutting on the north alley.

In June, 1914, the defendant purchased lot 4 (excepting a small part not material here) from one Johnson, who had been the record title owner thereof since 1883.Immediately thereafter the bank commenced the erection of its present substantial 24-foot front bank building upon said lot 4 and the strip here in dispute.It placed the south line of the bank building parallel with and up against a building with a front of 18 feet standing on lot 3.Upon lot 4 for many years prior to 1914 had stood a small frame building with a front of about 16 feet and with an open, uninclosed, other than by the adjoining buildings, space, of between 3 1/2 to 7 feet, between it and the building on lot 5, and except that at the rear thereof a woodshed projected some 2 or 3 feet to the south.

Plaintiff obtained title to lots 1, 2, and 3 of said block 1 from one C. W. Netherwood in November, 1919, and built upon the corner lot 1 a bank building, and in 1926, contemplating a rebuilding on said lot 3, caused a survey of it to be made, and then for the first time asserted that the defendant's building encroached some 2.75 feet on said lot 3; this contention being changed on the trial to the 3.13 feet as declared in the judgment.

The special verdict as answered by the jury was, in substance, as follows:

(1) Does part of defendant's bank building encroach upon plaintiff's lot 3?Ans.Yes.

(2) Having answered (1)“Yes,” then: Have defendant bank and Johnson, defendant's grantor, been in the continuous, actual, exclusive, and adverse possession, for a period of 20 years prior to July 13, 1926, of such portion of lot 3?Ans.No.

(3) At the time defendant bought lot 4 in 1914, was there such uncertainty and question about the true line between lots 3 and 4 that such true line could not be located with reasonable certainty?Ans.No.

(4) Was to be answered if (3) was answered “Yes,” and asked whether Netherwood in 1914, then owning lot 3, by agreement or acquiescence did concur with defendant that the north wall of the building then on lot 3 should be the division line between the lots.Not answered.

(5) Did Netherwood and Johnson mutually agree, at the time of the building of the north wall on lot 3, that such north wall should be the division line between said lots 3 and 4?Ans.Yes.

(6) Did Netherwood and Johnson mutually acquiesce in and abide by such agreement during the time of their ownership and occupancy of lots 3 and 4?Ans.Yes.

(7) The damages for rents and profits for six years prior to July, 1926, were assessed at $360.

After respective motions by the parties, the trial court held that, notwithstanding the answers to questions 5 and 6 supra, the finding by answer to question 2, that there was no adverse possession of the strip in question, required a judgment for the plaintiff.

Gilbert, Ela, Heilman & Raeder, of Madison, for appellant.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondent.

ESCHWEILER, J.

The main contentions on this appeal involve three questions:

(1) Has plaintiff shown a record title to the 3.13 foot strip of land?

(2) Has defendant shown title to the strip by adverse possession;

(3) Did defendant establish a valid and binding agreement between the former owners of lots 3 and 4 fixing the division line at the present south line of defendant's building?

By their answer to the first question of the special verdict, to the effect that there was an encroachment by the defendant's building upon plaintiff's lot 3, it was thereby determined that the record title to lot 3 did include the disputed 3.13-foot strip.Upon the conflict of the evidence on this question, we think there is support for such finding, and that the trial court was correct in confirming such and using it as the basis for the judgment in plaintiff's favor.

For one-half mile south of an unquestioned stone monument found on the line between sections 1and12 on the north side of Main street in said village, the land had all been platted.An accurate measurement on the ground of this one-half mile showed the exceptionally slight discrepancy of but 1.84 feet between the actual surface and the corresponding distance shown on the plats.The first plat, recorded in 1857, was of the property south of West and west of Main streets.The next plat, including the land here in question, was recorded in 1866.These two plats do not give in figures the width of West street, the territorial highway, but it is scaled, according to the earlier plat, at about 66 feet wide, and by the later one at about 52 feet, but, as occupied by buildings at this intersection, and as apparently generally recognized, it was but 3 rods or 49 1/2 feet in width.

The exact location and the width of West street seems to present the substantial difficulty presented in the surveying proposition here involved.The evidence indicated that there has been no noticed or substantial change in the location of this West street, since at least 1856, according to the testimony of a Mr. Netherwood, who came to the village of Oregon at the then age of 13, and who at one time had owned these lots 3 and 4 as well as lots 1 and 2 in said block 1.

According to the testimony of plaintiff's surveyors, they started at the monument on Main street above mentioned, and found an overrun of about 10 feet between that point and what they considered to be the south line of said block 1, taken by them to be the north line of West street, as it appeared to them from the buildings on the apparent north line of West street running west from Main, and as checked with an iron stake claimed to have been set many years before as marking the northeast or opposite intersection of West and Main streets.

Some discrepancy is almost universally to be found between the platted distances shown on the earlier surveys and the actual distances found by present day more accurate measurements.The abnormal overrun of almost 10 feet in the distance of 940 feet between the stone monument on Main street and the south line of block 1 as used by plaintiff's surveyors is the most substantial objection to plaintiff's...