Stone Bank Imp. Co. v. Vollriede

• Citation: 105 N.W.2d 789,11 Wis.2d 440
• Parties: STONE BANK IMPROVEMENT CO., Inc., a Wisconsin corporation, Appellant, v. Harvey R. VOLLRIEDE et al., Respondents.
• Decision Date: 01 November 1960
• Court: Wisconsin Supreme Court

Page 789

105 N.W.2d 789

11 Wis.2d 440

STONE BANK IMPROVEMENT CO., Inc., a Wisconsin corporation, Appellant, v. Harvey R. VOLLRIEDE et al., Respondents.

Supreme Court of Wisconsin.

Nov. 1, 1960.

Rehearing Denied Jan. 10, 1961.

The facts will be stated in the opinion.

E. J. Mueller, Milwaukee, for appellant.

Charles L. Goldberg, Milwaukee, Francis X. Krembs, Milwaukee, of counsel, for respondent.

MARTIN, Chief Justice.

On March 3, 1843 one John Starr Rockwell acquired title by patent from the United States to the southeast fractional quarter of section 19, township 8 north, range 18 east, Waukesha county.

The following conveyances were made of said lands, all parcels having as their north boundaries the line between the northeast and southeast quarters of section 19:

1. February 13, 1855, John S. Rockwell and wife to Francis Martin (respondents' predecessor in title):

'Commencing at the centre stake of Section No. Nineteen, Town Eight, Range Eighteen and run from thence East along the line between the North East and South East quarter of said Section number nineteen far enough to include ten acres next the West side of said South quarter of Section No. Nineteen by running South to a point at the Edge of land flowed by Water and thence along the Waters Edge Westerly to the North & South quarter line of said Section Nineteen.'

2. March 13, 1855, John S. Rockwell and wife to Charles Wichman, the five acres lying east of the Martin land, the east line of the Martin land being the west line of the Wichman five acres.

3. October 25, 1860, John S. Rockwell and wife to Wichman, an additional parcel east of Wichman's five acres, having as its west line the north 84 rods of the east line of the five acre tract, and extending east for a sufficient distance to make 1.03 acres.

4. June 1, 1864, the estate of Rockwell to John Norton Reed, a parcel containing 2.40 acres lying directly east of the land last conveyed to Wichman.

5. September 1, 1864, the estate of Rockwell to John Ferguson (appellant's predecessor in title):

'All that portion of the South East fractional quarter of Section No. Nineteen (19) Township No. Eight (8) North of Range Eighteen (18) East lying West from the centre of Oconomowoc River in the town of Merton, Waukesha County, State of Wis. (except that portion heretofore contracted or deeded) containing about twelve acres Land more or less.'

The Ferguson land was conveyed to Margaret Darrah on March 29, 1877 by deed describing it in the same language used in the Rockwell-Ferguson deed, except that the last phrase was changed to read 'containing about 28 acres more or less.' Upon Margaret Darrah's death in 1928 her heirs conveyed title to the appellant Stone Bank Improvement Company by a deed containing a metes and bounds description, 'containing 26.58 acres.'

The Francis Martin property was conveyed to Francis' wife Catherine on December 17, 1880, by deed using the identical description contained in the Rockwell-Martin deed of February 13, 1855. When Catherine Martin died it was conveyed to Betsey Sorenson by deed dated July 11, 1895. This deed used the same description contained in the February 13, 1855 deed, and added the following:

'A map and survey of said lands made by William R. Williams in May 1860 is on file in the office of the said county court in said estate and to the same reference is hereby made for greater certainty as respects the description of said lands.'

The map referred to, which is in evidence, shows the Martin land as a long, narrow tract running south from the line between the northeast and southeast quarters to an irregular northeast-southwest line indicated as the boundary of 'overflowed land.'

In the final decree in the estate of Betsey Sorenson, recorded April 2, 1942, the property is described the same as in her deed from the estate of Catherine Martin in 1895.

By two separate deeds dated October 15 and 18, 1949, the Betsey Sorenson heirs conveyed the property to Victor Sorenson and wife, using the same description as in the Martin-Sorenson deed of 1895.

On August 10, 1955 the Sorensons conveyed the Francis Martin land to the respondents Harvey Vollriede and wife, using the same description as in their deeds from the Sorenson heirs, stated the lands have also been described as:

'Commencing at the center post of said Sec. 19, thence South on the quarter section line, 26.05 1/2 chains, thence North 40 1/3? East, 6.66 chains; thence North 21 chains to the quarter section line; thence West 4.25 chains to the said center post of said Section 19, and the place of beginning, containing ten (10) acres of land more or less.'

and added the following:

'In the event that there is any conflict between the above-mentioned decriptions, the first description shall control and it is the intention of all of the parties to this deed that the southern boundary of the land conveyed by this instrument shall at all times touch the water and to continue along the water's edge * * *.'

The disputed area is a somewhat triangular shaped piece of land, the southern line of which lies on the shore of Okauchee lake. This is at the south end of the Francis Martin property and is referred to by all parties as marsh land.

Appellant is required to prove its title to the disputed area under the well-established rule that:

'A party claiming title and right to possession of land, under a very familiar rule, must recover upon the strength of his own title, rather than upon the weakness of the title of his adversary.' Slauson v. Goodrich Transportation Co., 1898, 99 Wis. 20, 23, 74 N.W. 574, 40 L.R.A. 825.

All the parties have Rockwell as their common grantor. The Martin, Wichman and Reed conveyances preceded the Ferguson deed by which Ferguson acquired all the Rockwell lands in the southeast quarter section, west of the river, except those previously conveyed. Ferguson's land was stated to contain about 12 acres, more or less. The deed from Ferguson to Darrah, conveying the same land, however, states it contained about 28 acres more or less.

Appellant argues that the marsh land was not conveyed to Francis Martin but that his land ran down to a point in close proximity to it, enough to give him his ten acres; that the title to the marsh area remained in Rockwell until the time of the Rockwell-Ferguson deed which conveyed to Ferguson all lands not previously conveyed.

This is an attack on the Martin title. The general rule in ascertaining the boundaries of land where there is a conflict in the description is that quantity governs in the absence of courses and distances and monuments.

However, in the Rockwell-Martin deed the acreage fixed the east boundary--'east * * * far enough to include ten acres.' The south boundary was fixed by the 'edge of land flowed by water and thence along the waters edge westerly.' If the 'edge of land flowed by water' was the shore of the lake, any accretion or reliction south of that line would belong to Martin and his successors, not to Rockwell and his subsequent grantees.

The 1860 map filed in the Catherine Martin estate shows the Martin land to be bounded on the south by an area denominated 'Overflowed Land' and it shows the south...