Mielke v. Dodge

• Decision Date: 17 April 1908
• Parties: MIELKE v. DODGE.
• Court: Wisconsin Supreme Court

135 Wis. 388

115 N.W. 1099

MIELKE

v.DODGE.

Supreme Court of Wisconsin.

April 17, 1908.

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

Action by Frank E. Mielke against Helen E. Dodge to restrain defendant from committing repeated trespasses upon certain land. From a judgment for defendant, plaintiff appeals. Affirmed.

It is undisputed that the plaintiff is the record owner of lots 1, 2, 7, and 8 of block 38, Danks & Richmond's plat of Shawano, and that the defendant is the record owner of lots 3, 4, 5, and 6 of the same block. The controversy in this case is over the location of a line fence between lots 2 and 7 and 3 and 6 above mentioned. The court found that for a period of 29 years a substantial fence between the property of plaintiff and defendant had existed; that said fence was always maintained on the line where originally placed for a period of more than 20 years, and that the defendant by herself and her immediate grantors has always maintained and claimed that such fence marked the true boundary or division between the land owned and occupied by plaintiff and his grantors and the land occupied by defendant and her grantors and persons in privity with her; that since said fence was built, and about 20 years before the commencement of this action, the defendant and her husband, Theodore Dodge, rebuilt said fence on the same line where it was first built, and that no objection was made by any one to the building of such fence; that defendant by herself and her immediate grantors, and those in privity with her, has occupied the premises up to the fence line, and been in possession up to the line marked by the fence for a period of more than 20 years before the commencement of this action; that such possession by defendant was open, adverse, exclusive, notorious, hostile, continuous, and uninterrupted for a period of more than 20 years, and upon claim of ownership up to the fence line; that the strip of land described in the complaint is inside of the fence line of the premises of the defendant, and is the strip of land upon which plaintiff claims that the defendant trespasses; that defendant has lived on the premises divided by the fence from the premises of the plaintiff for a period of at least 29 years, and is still living thereon, and that said fence has always stood there ever since it was built up to the time it was removed by plaintiff shortly before the commencement of this action; that defendant did not occupy the strip of land described in the complaint by permission of any one having the record title, but held the same under claim of ownership, claiming that said fence was the true boundary or marked the true division of the premises occupied and owned by her and her prior grantors and the property of the plaintiff and his grantors. The question involved, therefore, is whether the land lying between the lot line and the fence belongs to the plaintiff. Judgment was entered for defendant, and plaintiff appealed.Eberlein & Eberlein, for appellant.

P. J. Winter, for respondent.

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

As appears from the findings, the court below found all the facts necessary to establish the defendant's title by adverse possession, and found that the fence had always been maintained on the line were originally placed for more than 20 years, and that defendant by herself and immediate grantors had always maintained and claimed that such fence marked the true boundary, and that such possession by defendant has been open, adverse, exclusive, notorious, hostile, continuous, and uninterrupted for more than 20 years upon claim of ownership up to the fence line, and that the defendant did not occupy the strip of land in question by permission of any owner of record title, but held the same under claim of ownership, claiming that said fence was the true boundary and marked the true division of the premises occupied and owned by her and her prior grantors. The appellant attacks the findings of fact, and claims they are unsupported by the evidence. The proof establishes without substantial dispute that the fence was built where located 25 years or more before the commencement of the action, and afterwards rebuilt 22 years before the commencement of the action upon the same line as the old fence, and ever since has been maintained as rebuilt; but it is claimed on the part of the appellant that during a portion of the period the use by the defendant's grantors was permissive. This is sought to be established mainly by the evidence of Christenson and Farnsworth.

It is claimed by counsel for respondent that this evidence was not competent; but we shall not stop to consider the objection or decide whether competent or not, because we are clear that the testimony was wholly insufficient, even if competent, to establish the claim. There is evidence that Farnsworth owned the property from 1880 to 1885, or a portion of that...