Riha v. Pelnar

• Decision Date: 28 November 1893
• Citation: 86 Wis. 408,57 N.W. 51
• Parties: RIHA v. PELNAR.
• Court: Wisconsin Supreme Court

86 Wis. 408

57 N.W. 51

RIHA

v.PELNAR.

Supreme Court of Wisconsin.

Nov. 28, 1893.

Appeal from circuit court, Kewaunee county; N. S. Gilson, Judge.

Trespass by Wenzel Riha against Nicholas Pelnar. From a judgment for defendant, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

Trespass action, commenced in justice's court, and removed to the circuit court, upon plea of title. The premises in dispute are a half acre of land in a square form in the N. W. corner of the W. 1/2 of the N. W. 1/4 of section No. 21, township 22, range 24, in Kewaunee county. It appeared on the trial that one Francis Shimmel was the original owner of the above-described 80 acres, including the half acre in dispute, and that both parties claim title under him. On the 29th day of March, 1864, Francis Shimmel and wife conveyed the said 80 acres, without exception, to Wenzel Shimmel, by warranty deed. January 10, 1872, Wenzel Shimmel and wife conveyed the same premises by warranty deed to John Riha. The plaintiff, Wenzel Riha, is one of the heirs at law of said John Riha, deceased, and is the grantee of the premises by quitclaim deed, signed by the remaining heirs of John Riha. This series of deeds constituted the plaintiff's paper title. On the part of the defendant it appeared that Wenzel Shimmel and wife conveyed to Simon Pelnar, October 13, 1859, by warranty deed, the half acre of land in dispute, described as one-half acre of land in the N. W. corner of the N. W. 1/4 of the N. W. 1/4 of said section 21, which deed was duly recorded September 27, 1860; also that on the 12th of January, 1885, Simon Pelnar and wife conveyed the said half acre by warranty deed to the defendant, Nicholas Pelnar, which deed was recorded January 24, 1885. The case was tried with a jury, but, after both parties had rested, and a motion for nonsuit had been made, the jury was discharged by agreement of the counsel, and the case submitted to the court for decision. The case was then reopened and further testimony taken. The court made the following findings:

First. The trespass complained of consists of the admitted attempt of the defendant to build a fence around one-half acre of land in the N. W. corner of the W. 1/2 of the N. W. 1/4 of section No. 21, described in the complaint. The premises in dispute were conveyed by Wenzel Shimmel and wife to Simon Pelnar by warranty deed dated October 13, 1859, and recorded September 27, 1860, which deed described the premises as one-half acre in the northwest corner of the government subdivision given above. Second. That on the 13th day of October, 1859, the W. 1/2 of the N. W. 1/4 of said section No. 21 was inclosed with a brush fence on the north and west sides, so as to include the one-half acre in dispute. That said fence has been repaired, rebuilt, and maintained by Franz Shimmel and his grantees from time to time since 1859, on substantially the same line, and the said W. 1/2 of the N. W. 1/4 of said section has been protected by a substantial inclosure by the plaintiff and his grantors for more than 20 years next prior to the acts constituting the alleged trespass, and the said fence was built in the year 1859 or before. Third. That the plaintiff and his grantors have been in the actual, continuous, and exclusive possession of said W. 1/2 of the N. W. 1/4 of said section 21, including said one-half acre, from October 13, 1859, down to the time of the alleged trespass, and during that time cleared off the timber from said one-half acre, together with other land in said government 80 adjacent thereto, and cultivated and improved the same according to the usual course and custom of the adjoining country; that the defendant and his grantors have never been in actual possession of the premises in dispute. Fourth. That the defendant and his father, Simon Pelnar, grantee in the deed of October 13, 1859, both lived near said premises, and must have known of the possession of and improvements on said W. 1/2 of the N. W. 1/4 of said section No. 21, including said one-half acre, by the plaintiff and his grantors. Fifth. That neither the defendant nor his father are shown to have informed or notified the plaintiff or any of the latter's grantors that they claimed title or ownership to the one-half acre in dispute; that neither the plaintiff nor any of his grantors ever informed or notified the defendant or his father, Simon Pelnar, that they claimed title or ownership to the said one-half acre, or that they claimed to hold the same adversely; that neither the defendant nor his said father had any notice or knowledge that the plaintiff and his grantors were not holding in subordination to the legal title, unless such knowledge can be inferred from the foregoing facts found as to possession; that there has been no disseisin of the defendant or his grantors, or adverse possession of the premises in dispute by the plaintiff or his grantors, unless a disseising or adverse possession can be inferred from the foregoing facts and the testimony of the plaintiff's witnesses as to the nature and character of the possession of the plaintiff and his grantors. Sixth. That the acts of the defendant complained of were committed by him in digging post holes and setting posts around said one-half acre in square form in the N. W. corner of the W. 1/2 of the N. W. 1/4 of said section No. 21, within the inclosure made by said fence originally constructed in 1859. Seventh. That if the plaintiff is entitled to recover, his damages are found to be the sum of six cents.

Conclusions of Law.

First. That the said deed of October 13, 1859, conveyed one-half acre in square form in the N. W. corner of said W. 1/2 of the N. W. 1/4 of said section 21.

Second. That the plaintiff and his grantors have held possession of the one-half acre in question since the said deed of October 13, 1859, not adversely to the defendant and his father, but in subordination to their legal title.

Third. That the plaintiff is not entitled to recover in this action, and that his complaint should be dismissed on the merits, with costs.

From judgment for defendant on these findings the plaintiff appeals.

George B. Byron, (G. G. Sedgwick, of counsel,) for appellant.

John Wattawa, (Nash & Nash, of counsel,) for respondent.

WINSLOW, J., (after stating the facts).

The paper title to the half acre in dispute was admittedly in the defendant under the deed of Wenzel Shimmel to Simon Pelnar, of date October 13, 1859. It is equally clear that the actual possession of the premises has been in the plaintiff and his grantors since on and prior to the execution of the Pelnar deed. The circuit court found that this possession was not adverse, but was in subordination to the true title, and consequently that the defendant...