Ovig v. Morrison
| Decision Date | 15 March 1910 |
| Parties | OVIG v. MORRISON ET AL. |
| Court | Wisconsin Supreme Court |
After establishment of adverse possession of land a temporary absence of the invader, such as leaving the dwelling house thereon without an occupant, while endeavoring to secure a tenant, or other temporary absence not evincing any intention of abandonment, there being no interruption of the possession by entry of the true owner, or other disseisin, does not suspend the running of the statute against such owner.
Actual possession of a part of a tract of land under color of title extends by construction to the calls of the paper basis for the entry.
In case of adverse possession of a tract of land under color of title, and actual adverse possession of contiguous land in connection therewith, possession extends by construction to the calls of the paper basis for the entry under the 10-year statute of limitations, while the 20-year statute applies to the possession beyond such calls.
Neither good faith, bad faith nor mistake of boundaries affects the character of possession requisite to title by adverse possession.
The sole test of adverse holding under the statutes on the subject of title by adverse possession, is whether the true owner is actually disseised for the statutory period.
Adverse holding is not interrupted by the hostile possessor endeavoring to settle the disputed right to the premises so as to avoid litigation, or the status of his claim affected.
An offer by a person claiming title to land by adverse possession, after lapse of the period of limitation, does not affect the rights of such person.
The rule of the Code is that unexplained, exclusive, continuous occupancy of land under a chain of title for the full period requisite to title by adverse possession, extinguishes the presumption of occupancy in subordination to the right of the true owner and creates a presumption of holding during such period with all the characteristics of adverse possession, subject to be rebutted by proof to the contrary, but conclusive in the absence of such proof.
Continuous disseisin of the true owner of a tract of land by another, or others, in continuity under color of title for a period of 10 years, or without such color for a period of 20 years, creates a disability in such owner to recover the land by judicial remedies and so divests him of title and vests it in his adversary, though there was, to his knowledge, no legitimate basis whatever for his adversary's claim during the statutory period.
Appeal from Circuit Court, Eau Claire County; James O'Neill, Judge.
Action by Bertha Stav Ovig against Fannie H. Morrison and others. There was a directed verdict for defendants, and plaintiff appeals. Affirmed.
Action in ejectment. The defendants, among other things, pleaded title in defendant Fannie H. Morrison by adverse possession, under the 20-year statute. There was proof that plaintiff had paper title to the S. 46 1/4 feet of the platted lot in question, but that her occupancy, had only been up to the south side of a narrow strip of irregular width, averaging about 4 feet, sought to be recovered in this action. On the north side of that part of the lot occupied by plaintiff, for more than 20 years, there had existed a division fence and that part of the lot within the fence, including all the disputed strip, had been continuously occupied by the defendant Fannie H. Morrison and those under whom she claimed. More than 20 years prior to the commencement of the action said defendant's remote grantor owned the north part of the lot, claiming his south line to be the north line of the premises as occupied by plaintiff and her predecessors in title, and so claiming he located his dwelling house partly thereon, so that the north line, as the plaintiff claims the same to be, passed through the south side of said house. Neither the person who built said house nor any one in the chain of title from him, intended to claim any further south than the true line, but the claim during the entire statutory period of 20 years has been that the fence aforesaid, recognized as a division fence, was on the line, or at least that no point of it was too far south. If such claim was not correct it was owing to a mistake of boundaries; claimant on the north side of the fence during the whole time treating that part immediately north of the fence as his property and actually and exclusively occupying the same. It was within an inclosure containing the dwelling house aforesaid which stood partly south of the north line of the disputed strip. The inclosure was used continuously for the full period of 20 years as appurtenant to such dwelling house. Whenever the dwelling house was occupied by the owner or a tenant the grounds were used on the north side of the fence in all respects as one having full title would use such premises. At no time during the 20-year period did plaintiff or any one claiming under her use or occupy in any way any part of the strip of land sought to be recovered. When she constructed her sidewalk she built only to the point opposite the street end of the division fence.
The owner of the property north of the line fence in 1882 occupied it continuously till he lost the same to a purchaser under foreclosure proceedings. Thereafter the house and yard, including the strip in question, under the chain of title resting on the foreclosure proceedings, was kept for leasehold purposes. Generally the premises were occupied by a tenant. There were periods when there was no tenant; periods of absence from the premises of any person representing said defendant, but during none of such periods was there any invasion of the premises by plaintiff, or was there any indication, by any circumstance, of abandonment of any of the land north of the fence. It was treated by the person holding in defendant's chain of title as an owner might treat property kept for leasehold purposes.
On such evidence the court directed a verdict for defendant. Judgment was rendered thereon in defendant's favor and for costs.A. C. Larson, for appellant.
Arthur H. Shoemaker, for respondents.
MARSHALL, J. (after stating the facts as above).
Counsel for appellant claim, in the main, that the judgment should be...
To continue reading
Request your trial
-
City of Rock Springs v. Sturm
...upon the intent with which the occupant has held possession and this intent is to be determined by what he has done." In Ovig v. Morrison, 142 Wis. 243, 125 N.W. 449, the said: "It is obvious that the only sensible, safe, and really equitable rule is to make the physical characteristics of ......
-
Peter H. and Barbara J. Steuck Living Trust v. Easley
...11 The court in Burkhardt v. Smith, 17 Wis.2d 132, 140, 115 N.W.2d 540 (1962), explains that this has been the law since Ovig v. Morrison, 142 Wis. 243, 125 N.W. 449 (1910). 12 Wiese v. Swersinske, 265 Wis. 258, 61 N.W.2d 312 (1953); Grell v. Ganser, 255 Wis. 381, 39 N.W.2d 397 (1949); Wunn......
-
Bruch v. Benedict
...were comparatively short. We are hardly warranted in holding, as a matter of law, that they were unreasonably long. In Ovig vs. Morrison, 142 Wis. 243, 125 N.W. 449, is stated: "It is an elementary rule that where adverse possession of land has once been fully established, occasional absenc......
-
Jefferson County v. Mosley
...claims. Land and Loan Co. v. Kesler, 1912, 150 Wis. 283, 136 N.W 625; Childs v. Nelson, 1887, 69 Wis. 125, 33 N.W. 587; Ovig v. Morrison, 1910, 142 Wis. 243, 125 N.W. 449. 'Having knowledge that the premises granted were subject to the rights of the state as established by the boundaries of......