Off v. Heinrichs

• Decision Date: 14 March 1905
• Citation: 124 Wis. 440,102 N.W. 904
• Parties: OFF ET AL. v. HEINRICHS.
• Court: Wisconsin Supreme Court

124 Wis. 440

102 N.W. 904

OFF ET AL.

v.HEINRICHS.

Supreme Court of Wisconsin.

March 14, 1905.

Appeal from Circuit Court, Milwaukee County; Orren S. Williams, Judge.

Action by Herman Off, as guardian of Rudolph and Herman Off, and another, against J. W. Heinrichs. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

This is an action of ejectment against H. W. Heinrichs to recover possession of land described in the complaint as follows: A strip of land off of the south side of the following described real estate: Said strip is about eighteen (18) feet wide at the easterly end, sixteen (16) feet wide at the middle point, and about ten feet (10) wide at the westerly point, to wit. The south 7 1/2 acres of land off of the 16 acres of land, more or less, in lot two (2), in section twenty-eight (28), town eight (8), range twenty-two (22), east, in Milwaukee county, Wis., bounded by a line beginning in the section line between sections 28 and 29, 26 2/3 rods from the southwest corner of said lot two (2); running thence east one hundred rods (100), more or less, to low-water mark of Lake Michigan; thence on said line back to the place of beginning; thence north twenty-six and two-thirds rods to a post; thence east one hundred rods (100), more or less, to low-water mark of Lake Michigan; being the land formerly bounded on the south by Becker's and north by Steffen's land, in Milwaukee county, Wis.

The answer is, in effect, a general denial. Both parties claim title through divers mesne conveyances from one Thomas Severn.

April 1, 1867, Thomas Severn conveyed by deed to August Loennecker the following described land: Part of lot two (2) in fractional section twenty-eight (28), town eight (8), range twenty-two (22) east, bounded as follows, viz.: Beginning at a post in the section line dividing sections twenty-eight (28) and twenty-nine (29), distant twenty-six and two-thirds (26 2/3) rods from the southwest corner of said lot two (2); thence east one hundred (100) rods to low-water mark on Lake Michigan; thence back by the same to the place of beginning; thence north twenty-six and two-thirds (26 2/3) rods to a post; thence east one hundred (100) rods to lowwater mark on Lake Michigan; containing sixteen (16) acres, more or less; and being also bounded on the south by August Becker's land, on the north by one Steffen's land, on the east by Lake Michigan, and on the west by Jacob Rader's land. On or before June 24, 1891, by descent and by divers mesne conveyances, the title conveyed by said deed from Severn to Loennecker became and was vested in Johanna Loennecker, and the plaintiffs derive their title through her.

On October 5, 1867, said Thomas Severn conveyed to August Becker the following land: Beginning at the southwest corner of lot two (2) of fractional section twenty-eight (28), in town eight (8) north, of range twenty-two (22) east; running thence east ten (10) chains to a point, a corner of Frederick Gram's land; thence by the same north three and four-hundredths (3 4/100) chains to a point; thence by the same east sixteen and fifty-hundredths (16 50/100) chains to low-water mark of Lake Michigan; thence back by the same course to the place of beginning; thence north six and thirty-hundredths (6 30/100) chains to a point, a corner of August Loennecker's land; thence by the same east twenty-five and eighty-hundredths (25 80/100) chains to low-water mark of Lake Michigan; containing ten acres, be the same more or less, county of Milwaukee, Wis.

It appears from the evidence that a rail fence was built some time before 1867 upon what was understood to be the line between the tracts conveyed to August Loennecker and August Becker, above described. It would also appear, from the call in the deed to August Loennecker for the south boundary as August Becker's land, that Becker must have been in possession prior to the time he received his deed, as his deed appears to have been executed in October, while the deed to Loennecker was in April, 1867. However, it is undisputed that the rail fence existed between the two tracts in 1867, and that August Loennecker and those claiming title through him continued to occupy up to this fence; that the fence was recognized as the dividing line between the property of Loennecker and Becker, and in 1875 a new fence was built, by agreement between the parties, each building one-half, upon the same line as the old rail fence. This occupancy by the Loenneckers under claim of title continued until 1891, at which time Johanna Loennecker executed a land contract to one Gether, and afterwards, in 1892, conveyed to him, by deed, the property, same description as in deed from Severn to Loennecker. That afterwards, on January 29, 1892, one William J. Kaul, as president, and C. R. Gether, as secretary, of a corporation known as “North Lawndale Company,” acknowledged a plat of a tract of land called “Glen Owen Plat,” embracing part of the lands described in land contract from Loennecker to Gether, together with other lands, the south boundary of Glen Owen being 440 feet north of the southwest corner of lot 2. On the 2d day of March, 1892, C. R. Gether and wife conveyed to the North Lawndale Company the land in question, together with other land. April 29, 1895, the North Lawndale Company conveyed to said Gether the south 7 1/2 acres of the 16 acres formerly conveyed by Johanna Loennecker to Gether. On the same day said Gether and wife reconveyed to Johanna Loennecker said south 7 1/2 acres, and she continued to occupy the premises up to the old fence until her death, in 1900. January 8, 1892, August Becker and wife sold by land contract, or bond for deed, to C. D. Stanhope, the land deeded to him by Severn. January 13, 1892, Stanhope acknowledged a plat of land called “Stanhope Subdivision No. Three,” which plat shows the north boundary of land so platted to be 440 feet north of and parallel to south line of lot 2. January 9, 1893, Stanhope assigned an undivided one-half interest in said land contract to C. R. Gether, and on January 10, 1893, August Becker and wife conveyed by deed to Stanhope and Gether the land described in the land contract. August 31, 1896, Stanhope and wife conveyed to Gether the land described in deed from Severn to Becker. August 31, 1896, Gether and wife reconveyed said land to August Becker. In 1900 Becker conveyed to defendant, and in 1901 defendant built a fence on a line 10 feet north at the west end, and 18 feet north at the east end, of the line of the old rail fence, and being on the north line of the description by courses and distances in deed from Severn to Becker. According to courses and distances given in deed from Severn to Becker, Becker's north line would be 415.8 feet north from the south line of lot 2, and the south line of the Loennecker tract 440 feet north of the south line of lot 2, leaving a strip about 25 feet between the two tracts; but the old fence as the north boundary of the Becker tract was 10 feet at west end, and 18 feet at east end, farther south than the north line of the Becker tract, according to courses and distances specified in deed from Severn to Becker. This strip is land in dispute in this action.

The action was tried by the court, and the findings of fact are substantially in accordance with the facts heretofore stated, except the court found that by the making and recording of Glen Owen plat, and the making and accepting of certain conveyances from the North Lawndale Company to Gether, and from Gether to Johanna Loennecker, Gether and Johanna Loennecker recognized as the true south boundary of the Loennecker land a line 440 feet north of and parallel to the south line of lot 2, being the south line of Glen Owen plat; and further found that the strip of land in suit was not included within the description in deed from Severn to Loennecker made in 1867, nor in deed from Johanna Loennecker to Gether made in 1892, nor within the description of the intervening or subsequent conveyances, but that said strip was included within the description in deed from Severn to Becker, and subsequent conveyances under which defendant claims, and that the plaintiffs and those under whom they claim had not held adverse possession of the strip of land in suit for a period of 20 years continuously immediately preceding the commencement of this action; and the court found, as conclusions of law, that defendant was entitled to judgment. Judgment was thereafter rendered in favor of defendant, dismissing the complaint with costs, from which this appeal was taken.

J. E. Wildish, for appella...