Nagel v. Philipsen

• Decision Date: 06 May 1958
• Citation: Nagel v. Philipsen, 4 Wis.2d 104, 90 N.W.2d 151 (Wis. 1958)
• Parties: Milton J. NAGEL et al., Respondents, v. Alfred A. PHILIPSEN et al., Appellants.
• Court: Wisconsin Supreme Court

Page 151

90 N.W.2d 151

4 Wis.2d 104

Milton J. NAGEL et al., Respondents, v.Alfred A. PHILIPSEN et al., Appellants.

Supreme Court of Wisconsin.

May 6, 1958.

Strehlow & Cranston, Green Bay, for appellant.

CURRIE, Justice.

The plaintiffs Nagel have served no brief and are in default on this appeal.On the date set for argument counsel for the defendants moved for reversal under Rule 32(sec. 251.32, Stats.).It lies within the discretion of this court whether to grant such motion.This court is somewhat hesitant to perfunctorily reverse a judgment of a trial court which undoubtedly gave the case careful consideration before entering such judgment.Upon examination of the record on this appeal we have concluded that it is one which should be disposed of on the merits, and not under Rule 32.

The record contains no bill of exceptions and the statement of facts prefacing this opinion has been gleaned from the memorandum opinion and findings of fact of the trial court.

The issue on appeal is whether there are sufficient facts in the record upon which to base a finding as to the location of the boundary line separating the Nagel premises from those owned by the defendants Brebner and Philipsen.If such sufficient facts are found to be present and are undisputed, then this court is in a position to determine the location of such boundary line.However, if such material facts are in dispute, the proper disposition of the appeal would require that the cause be remanded to the trial court to make the essential finding of fact as to the location of such boundary line.

Appellantdefendants contend that, because there was mutual acquiescence by the Nagels and Philipsens in the boundary fence separating their respective properties for approximately thirteen years, such fence should be held to be the true boundary line.

The annotations on the subject of establishment of a boundary line by acquiescence, 69 A.L.R. 1430, 1500, and113 A.L.R. 421, 435, disclose that the cases generally hold that, in order to be effective, acquiescence in a boundary line must continue for the period of time required by the statute of limitations for the acquisition of title by adverse possession.In Wisconsin such statutory period is twenty years.Sec. 330.10, Stats.

In the following Wisconsin cases, which have held that acquiescence by adjoining owners in the location of a fence as establishing the common boundary line of their respective properties was conclusive as to the location of such line, the fence in each case had stood in the same location for more than twenty years.Wiese v. Swersinske, 1953, 265 Wis. 258, 61 N.W.2d 312;Grell v. Ganser, 1949, 255 Wis. 381, 39 N.W.2d 397;Wunnicker v. Dederich, 1915, 160 Wis. 462, 152 N.W. 139;Brew v. Nugent, 1908, 136 Wis. 336, 117 N.W. 813;Wollman v. Ruehle, 1899, 104 Wis. 603, 80 N.W. 919;Welton v. Poynter, 1897, 96 Wis. 346, 71 N.W. 597;andToby v. Secor, 1884, 60 Wis. 310, 19 N.W. 99.

6 Thompson, Real Property, p. 483, sec. 3301, states:

'The acquiescence or admission of the owner of land, made under a mistake as to his rights, should neither estop nor prejudice him from subsequently enlarging his possession to the limits of his true title, provided no actual adversary possession has intervened to defeat his title.'

A Wisconsin case in accord with the above quotation is Peters v. Reichenbach, 1902, 114 Wis. 209, 90 N.W. 184.

However, there are exceptions to the general rule, that the fence must have stood for the period of the statute of limitations in order for the acquiescence to be conclusive on the issue of the location of a boundary line.The cases of Rottman v. Toft, 1925, 187 Wis. 558, 204 N.W. 585, andPickett v. Nelson, 1888, 71 Wis. 542, 37 N.W. 836, illustrate one of such exceptions.In such two cases there was testimony that before the fence was erected a dispute had arisen between the adjoining owners as to the location of the boundary line between their properies, and that the fences were erected pursuant to an agreement that the same marked the location of the true boundary line.In the Rottman case such agreement took the form of having an arbitrator establish the line upon which the fence was erected.These cases hold that where there is a dispute as to the location of a boundary line resulting in an agreement between the owners establishing such disputed line, and a fence is located on such line so established by agreement, which is long acquiesced in by such adjoining owners, these facts are conclusive as to the location of the line, even though the period of acquiescence may fall short of twenty years.For an analysis of the Pickett case, see alsoPeters v. Reichenbach, supra, 114 Wis. at page 215, 90 N.W. at page 186, wherein it is pointed out that, without an original dispute prior to the erection of the fence, acquiescence short of twenty years is insufficient to render the location of the fence...