Meyer v. Hope

• Decision Date: 01 November 1898
• Parties: MEYER v. HOPE.
• Court: Wisconsin Supreme Court

101 Wis. 123

77 N.W. 720

MEYER

v.HOPE.

Supreme Court of Wisconsin.

Nov. 1, 1898.

Appeal from circuit court, Grant county; George Clementson, Judge.

Action of ejectment by Richard Meyer, Jr., administrator, against Michael W. Hope. There was a judgment for defendant, and plaintiff appeals. Affirmed.Bushnell, Watkins & Moses, for appellant.

Brown & Goodsell, for respondent.

MARSHALL, J.

It is considered that the only question which requires special consideration in this opinion is, does the evidence warrant the conclusion of the trial court that the defendant had been for more than 20 years in the adverse possession of the land in question, before this action was commenced? That defendant had been in the actual, continuous, exclusive, notorious occupation of the land for the time mentioned, is not denied. The contention is that the possession was not adverse. That was a fact in controversy on the evidence, and the determination of it by the trial court must stand as a verity unless contrary to the clear preponderance of the evidence.

The doctrine that evidence of adverse possession must be construed strictly and every reasonable presumption be made in favor of the true owner is well understood, but that does not avail against the fact of exclusive notorious, unexplained continuous occupation for the requisite period to acquire title by prescription. When that is established it is conclusive as to the nature of the possession till rebutted by some satisfactory evidence. It overcomes the presumption previously existing in favor of the true owner, and a presumption arises from the facts in favor of the occupant, that his occupancy was characterized by all the other elements requisite to adverse possession, that is, that it began by the requisite entry, claiming title, to set the statute of limitation on the subject running, and so continued down to the end of the statutory period. This subject was so recently considered in Wilkins v. Nicolai (Wis.) 74 N. W. 103, and Wollmann v. Ruehle (Wis.) 75 N. W. 425, that little, if anything further need be said other than to refer to the opinions in those cases. In the former it is said, the rule that the evidence of adverse possession must be positive, and be strictly construed against the person claiming a prescriptive right, and that every reasonable presumption should be given in favor of the true owner, is fully recognized, but along with that is another rule just as firmly established,--that open, notorious and continuous use without objection for more than 20 years, unexplained, establishes the fact of adverse possession from the beginning and a perfect title by prescription. So the fact of adverse possession was unquestionably established here, unless the prima facie case made by the continuous, open, exclusive occupancy by defendant, was met by circumstances explaining those facts, of sufficient weight to turn the scales in favor of the alleged true owner. We have carefully examined the record, and are unable to find evidence therein, to warrant us in saying, the trial court erred in the finding on that point. There are many circumstances supporting the presumption which arises from defendant's occupation, and many circumstances tending to impeach that presumption. On the part of the plaintiff, there is evidence tending to show that defendant went into possession of part of the premises, at least, by consent of the deceased. That, if not overcome, would defeat the claim of hostile occupancy at the start. On the other hand is evidence that in 1873, long after the alleged permissive entry was made, defendant mortgaged the entire property for $1,200 to one Garthwaite, the deceased being one of the subscribing witnesses, and that the mortgage was recorded the day of its execution. There is no satisfactory explanation of those circumstances, to militate against their standing as conclusive evidence of an assertion of title to the property by defendant against the deceased and all comers. The giving of the mortgage itself, unexplained, is such an assertion of title, but it is made unanswerable by the declarations contained therein of ownership by the mortgagor, which must be presumed to have been brought home to the knowledge of the deceased, because of his witnessing the instrument. A mortgagor even, in possession, may start the statutory period of adverse possession running against the mortgagee by an assertion of title, or the doing of some act to the knowledge of the mortgagee inconsistent with his rights. Jones, Mortg. § 1211; Maxwell v. Hartmann, 50 Wis. 660, 8 N. W. 103. True, when one enters into possession of land of another, the presumption is, till the expiration of the period requisite to make title by prescription, that the entry was subordinate to the title of such other. Though such presumption be succeeded by that of a hostile entry upon the expiration of such period, if the latter presumption be met by proof that the entry was permissive on the part of the true owner, then the presumption of a hostile entry gives way to one that the possession, permissive at the start, so continued to the end. But if at any time after permissive possession commence there be a distinct denial of the right of the true owner brought home to him that constitutes a new and hostile entry, and a sufficient ouster of such owner to set the period of adverse possession running, which, if not thereafter interrupted, will at the expiration of the statutory period ripen into a perfect title. True, permissive possession, however long continued, does not...