Pickett v. Nelson
| Decision Date | 17 April 1888 |
| Citation | 71 Wis. 542,37 N.W. 836 |
| Parties | PICKETT v. NELSON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Green county.
This is an action by Augustus Pickett against William H. Nelson for damages for breaking and entering the plaintiff's close, described as 74 acres, on or about May 1, 1885. The answer is a general denial. The court charged the jury, in effect, that the 74 acres described was off from the west side of fractional lots 1, 5, 6, and 8, in section 6 described, and all lying on the east side of the line running north and south through the center of the section; that both parties claimed title to the locus in quo under Hanson Irions; that it appeared from the undisputed evidence that Irions went into possession of those lots under a deed from Erastus Corning in November, 1863; that it contained 174.86 acres; that while Irions was in possession, and on November 29, 1867, he entered into a contract in writing with Wemple to sell him the same premises for $2,500; that Wemple went into possession under that contract, and remained in such possession until in 1869, when, under an agreement between him and Irions, he, by a deed of quitclaim, released all his right, title, and interest in the premises under such contract to Irions; that, in the fall of 1868, the plaintiff, Pickett, went into possession of other fractional lots 2, 3, 4, 9, and 11, in the same section, and all lying on the west side on the said north and south line running through the center of the section, under a contract of purchase, and remained in such possession since; that the evidence tended to show that the plaintiff had fulfilled such contract, and become the absolute owner of that quarter section in 1872; that the undisputed evidence showed that November 8, 1875, Irions sold to Edward Whitehead the said 174.86 acres of land, and January 10, 1879, Edward Whitehead conveyed to Turner Whitehead the said 74 acres off the west side thereof; that November 23, 1881, Turner Whitehead conveyed the same 74 acres to the plaintiff; that August 6, 1885, Joseph W. Whitehead, who had then become the owner of all of said 174.86 acres except said 74 acres, conveyed the same to the defendant, Nelson, by deed, stating that the land therein conveyed contained 100 acres more or less; that the real contention between the parties was as to the location of the north and south section line; that the plaintiff claimed it to be 17 rods further east than the defendant admitted it to be; that the plaintiff claimed that in 1868 he (Wemple) and Irions made a parol agreement under which they had a survey made, and as a part of it the quarter section line was located, and that they made their fences on the line thus established; and that the plaintiff had maintained the same on his part until the defendant became such owner. From the judgment entered on the verdict in favor of the defendant, the plaintiff brings this appeal.B. Dunwiddie, for appellant.
A. S. Douglass and Orton & Osborne, for respondent.
CASSODAY, J., ( after stating the facts as above.)
The record is not certified to contain all the evidence. This being so, the facts stated above, and taken from the charge, must be treated as verities. At the time of the alleged trespass, the parties to this action were, respectively, the owners of adjoining farms. There was a dispute as to the north and south line between such farms. The plaintiff owned the farm on the west side of the line, and the defendant the farm on the east side of the line. The claims of the respective parties as to the location of such line at the north end differed some 17 rods. The Wemple contract with Irions was made November 29, 1867, and called for 174 acres, more or less, and was all on the east side of the line running north and south through the center of the section. Wemple appears to have made some payment on that contract. That contract was surrendered by quitclaim deed from Wemple to Irions, August, 9, 1869, in consideration of $200 paid by the latter. There was evidence tending to prove that, in the spring or summer of 1868, the parties all being ignorant as to the true location of the north and south line running through the center of the section, Pickett and Wemple, with the knowledge and consent of Irions then owning the legal title subject to such contract, employed a surveyor by the name of West to establish such line for the purpose of building a partition fence thereon; that such surveyor did establish such line, with the assistance of Pickett, Wemple, and Irions, the latter carrying the chain; that Wemple and Pickett thereupon...
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Daniel R. Northrop v. Opperman
...The doctrine of acquiescence has also sometimes been referred to as “rules as to practical location.” 21 ¶ 34 Citing Pickett v. Nelson, 71 Wis. 542, 546, 37 N.W. 836 (1888), the Boersts assert that the doctrine of acquiescence applies only when a party proves (1) genuine uncertainty about t......
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Bahr v. Imus
...(holding that a boundary by estoppel claim requires “permanent improvements” (internal quotation marks omitted)); Pickett v. Nelson, 71 Wis. 542, 37 N.W. 836, 838 (1888) (requiring “permanent improvements” in order to sustain a boundary by estoppel claim). 7. We once required a fifth elemen......
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Bayhouse v. Urquides
...of the adjacent owners substituted it as the true line." (See opinion by Judge Cooley in Diehl v. Zanger, 39 Mich. 601; Pickett v. Nelson, 71 Wis. 542, 37 N.W. 836; Bowman v. Duling, 39 W.Va. 619, 20 S.E. Brose v. Boise City Ry. Co., 5 Idaho 694, 51 P. 753; Urquide v. Flanagan, 7 Idaho 163,......
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Nagel v. Philipsen
...on the issue of the location of a boundary line. The cases of Rottman v. Toft, 1925, 187 Wis. 558, 204 N.W. 585, and Pickett 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 ar......