Sheppard v. Wilmott

• Decision Date: 03 February 1891
• Citation: 79 Wis. 15,47 N.W. 1054
• Parties: SHEPPARD v. WILMOTT.
• Court: Wisconsin Supreme Court

79 Wis. 15

47 N.W. 1054

SHEPPARD

v.WILMOTT.

Supreme Court of Wisconsin.

Feb. 3, 1891.

Appeal from circuit court, Walworth county; JOHN B. WINSLOW, Judge.

The action is to recover damages for an alleged trespass upon certain land in section 8, township 4 N., of range 18 E., in Walworth county. It is alleged in the complaint that plaintiff was in peaceable possession of the land when the trespass was committed by defendant. The answer is a general denial, and an allegation that the defendant is, and then was, the owner of the land. The following diagram will sufficiently show its location:

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The land in dispute is the triangular piece bounded on the east by the west line of lot 3, in section 9, on the south by an extension west to the lake of the south line of lot 3, and on the north-west by the lake. The south line of said lot 3, and lot 2 in section 8, is a quarter-section line. Lot 4, in section 8, is part of what is known as the “Cross waite Farm,” and lot 3, in section 9, is part of what is known as the “De Puy” or “Bay View” farm. These are quite large farms adjoining each other, and are divided by a line commencing at the quarter post in the line between sections 8 and 9, (which is at the south-west corner of lot 3,) and running south-east through section 9 as far as such farms extended in that direction. More than 30 years ago the respective owners of the two farms built a fence on that line. They also continued the fence from the quarter post north-westerly to the lake, and maintained the same until the defendant tore it down in 1889. The fence is indicated by the dotted line on the diagram. The circuit court found, in substance, that the defendant entered upon the land in controversy, and removed therefrom a part of the fence; that plaintiff was in peaceable possession of the land at the time, but made no claim of title thereto, and had none; that defendant was the owner of such land through mesne conveyances from one Hotchkiss, to whom it was patented by the United States in 1843; that the premises had not been held adversely by any one before 1873, but De Puy, under whom plaintiff was in possession, claimed so to hold them from that date; that they were inclosed with lot 3, and used in conjunction with that lot for pasturage more than 30 years; that, until shortly before this action was commenced, the former owners of both farms supposed the land in question belonged to the owner of lot 2, in section 8, and some of them discussed the propriety of instituting proceedings to compel him to fence it; and that such fence across the locus in quo had been maintained by De Puy and his grantors, as a matter of convenience in confining stock, neither of such parties knowing where the lines of the lot were or who owned it. On these findings, and pursuant to the conclusions of law therefrom, the court gave judgment for defendant, dismissing the complaint, with costs. The plaintiff appeals from the judgment.E. Merton, for appellant.

Wallace Ingalls and Quarles, Spence & Quarles, for respondent.

LYON, J., ( after stating the facts as above.)

If the defendant was the owner of the land in controversy, he had the undoubted right to make peaceable entry thereon, and remove the fence, notwithstanding the plaintiff was in possession thereof. There is nothing in the record tending to show that such entry was made “with strong hand, nor with a multitude of people,” and we therefore infer that it was made “in a peaceable manner.” Rev. St. § 3360. The defendant derives his title through mesne conveyances from the original patentee, Hotchkiss. If the latter obtained title under the government patent to him, the record title is in the defendant, for no attack is made upon any of such mesne conveyances different from that made upon the patent. The learned counsel for plaintiff maintained in his argument that the patent did not convey the land to Hotchkiss, because the land described in it is “the north-east quarter of the south-east...