Stahl v. Grover

• Decision Date: 15 December 1891
• Citation: 80 Wis. 650,50 N.W. 589
• Parties: STAHL v. GROVER.
• Court: Wisconsin Supreme Court

80 Wis. 650

50 N.W. 589

STAHL

v.GROVER.

Supreme Court of Wisconsin.

Dec. 15, 1891.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

Action by Thomas Stahl against H. H. Grover for trespass to land. Judgment for defendant. Plaintiff appeals. Reversed.Lamoreux, Gleason, Shea & Wright, for appellant.

John F. Dufur, for respondent.

COLE, C. J.

This is an action for trespass to real estate. In the complaint the plaintiff did not set up title to the premises, but relied upon his possession. The answer is a general denial, and alleges that the defendant is the owner and lawfully possessed of the premises, and that the plaintiff has no title or interest in them. The premises consist of portions of lots 1 and 2 in block 25 in the village of La Pointe. They are inclosed with a fence, and have been for many years, and the plaintiff testified he had repaired and kept up the fence, and had occupied the inclosure and raised crops thereon, since the fall of 1883, undisturbed, till May, 1887, when the defendant entered upon it, and injured the grass and herbage growing thereon. There was considerable testimony as to the occupancy of these lots since 1853, and it appeared that they had been occupied by a number of persons, none of whom, however, had any title to them. Nor does either of the parties to this suit show that he has any valid title to them. Some deeds were introduced on the trial to show title, but they were plainly defective and conveyed none. At the close of the case on both sides the circuit court ruled that the plaintiff had failed to show any valid claim to the land, his possession not having continued long enough to give him the right of possession, and directed a verdict for the defendant. As we understand the ruling of the learned circuit court, it held that, under the pleadings, the plaintiff must show that he had been in the actual, continued occupation of the premises a sufficient length of time to give him title by prescription, otherwise he could not mainain the action. There was abundant testimony that the plaintiff had been in the actual and undisturbed possession of the premises for four or five years before his possession was invaded by the defendant; that he had cultivated them, and kept up the fences inclosing them; and was not this sufficient, as against one who showed no legal title to the land and no right to the possession? It seems to us it was. The defendant could not justify his entry upon the premises unless he had the legal title or right of possession. The question was not whether the plaintiff had a legal title. If he was in the actual possession, he had the right to retain it as against a wrong-doer. The gist of the action is the injury to the possession, and, though the title may come in question, yet it is not essential to the action that it should. 1 Chit. Pl. 195. Actual and exclusive possession without a legal title is sufficient as against one who cannot make out a title prima facie entitling him to the possession, or who shows no right or authority from the real owner. Trespass to real estate is a possessory action, founded merely on the possession, and it is not necessary that the title should come in question. Lambert v. Stroother, Willes, 221. One in possession under a void lease may maintain trespass...