Thiel v. Damrau
| Decision Date | 09 November 1954 |
| Citation | 268 Wis. 76,66 N.W.2d 747 |
| Parties | Willing THIEL et al., Respondents, v. Gertrude DAMRAU, Appellant. |
| Court | Wisconsin Supreme Court |
Action commenced December 26, 1950, by plaintiffs Willing Thiel and Clairie Ann Thiel, his wife, against the defendant Gertrude Damrau, to recover possession of a narrow tapering strip of land approximately 95 feet in length and to quiet title thereto and also to recover damages for the wrongful possession thereof; and a counterclaim by defendant against plaintiffs for similar relief.
While both the complaint and counterclaim contain allegations in the nature of an action for ejectment, they also contain allegations in the nature of an equitable action to quiet title. Apparently the parties and the trial court considered that the causes of action pleaded by the plaintiffs and the defendant to be in equity, and the case was tried to the court without a jury. The trial court entered findings of fact and conclusions of law, wherein it was found and determined that the disputed boundary line was located as shown in a plat of a survey made by one Dancey, a surveyor, who testified as an expert witness in behalf of plaintiffs; that by reason thereof plaintiffs were entitled to recover possession of the disputed strip of land; and that plaintiffs were also entitled to recover $150 damages from the defendant.
Judgment was accordingly entered on October 17, 1953, in behalf of plaintiffs and against the defendant in conformity with the findings of fact and conclusions of law. From such judgment the defendant has appealed. Further facts will be stated in the opinion.
Rudolph L. Forrer, Milwaukee, for appellant.
G. C. Johnson, Jr., Oconomowoc, for respondents.
This appeal involves an unfortunate controversy between neighbors as to the true location of a boundary line separating their premises. Plaintiffs are the record owners of lots 5, 6 and 7 in Tearney's Subdivision in the community of Okauchee, in the town of Oconomowoc, Waukesha county, while the defendant is the record owner of lot 8 in said subdivision. The west boundary line of lot 7 forms the east boundary line of lot 8, and it is the location of this line that is the crux of the controversy. All four lots front on a public highway known as Tearney Drive, which forms the north boundary line of the lots, and said lots extend in a southeasterly direction to Tearney Lake upon which they abut, the lakeshore forming the south boundary of said lots. Lots 5, 6 and 7 each have a frontage of fifty feet where they abut upon Tearney Drive, while lot 8 has a frontage of sixty feet. The disputed boundary line does not run in a straight north and south direction but runs in a southeasterly direction from Tearney Drive to the lake, the angle at which said line runs being indicated on the original plat of the subdivision which was prepared and recorded in 1921, said boundary line being approximately ninety-five feet in length.
One Lucy V. Connor, formerly Lucy V. Tearney, was the common owner and grantor of all four lots. The plaintiff first purchased lots 5 and 6 from Mrs. Connor under warranty deed, dated November 12, 1929. Then, John H. Baumgartner and Louise Baumgartner, being the parents of the defendant Gertrude Damrau, purchased lot 8 from Mrs. Connor by warranty deed, dated August 5, 1931, which conveyed said lot to them as joint tenants. Some two months thereafter the plaintiffs acquired lot 7 from Mrs. Connor by warranty deed, dated November 6, 1931, lot 7 lying between the two lots which plaintiffs had purchased originally in 1929, and lot 8 previously purchased by the Baumgartners. John H. Baumgartner died January 29, 1942, as a result of which his widow, Louise Baumgartner, became the sole owner of lot 8, as surviving joint tenant. She died intestate on February 1, 1946, leaving her daughter, the defendant Gertrude Damrau, as her sole heir at law, and a final decree was entered in the Louise Baumgartner Estate by the county court of Milwaukee county assigning the title to lot 8 to the defendant as said sole heir at law.
At the trial both the defendant and her husband testified that, at the time of purchase of lot 8 by defendant's parents, there was a wooden stake on Tearney Drive, and another on the lakeshore, marking the boundary line between lots 7 and 8. Plaintiffs' complaint also admits the existence of such stakes by reason of an allegation contained therein which specifically alleges that at the time plaintiffs acquired their three lots from Mrs. Connor 'there were in existence stakes showing the boundary lines of all three lots, but that sometime thereafter said stakes disappeared.'
The Baumgartners commenced the construction of a house upon lot 8 in the fall of 1931. The defendant Mrs. Damrau testified that the construction of such house was contracted for in the latter part of October, 1931. Construction must have been commenced about that time because there was offered and received in evidence a receipt for $300, dated November 20, 1931, from the mason contractor for work he had performed in constructing the basement of such house.
Both Mrs. Damrau and her husband testified that before construction was started the mason contractor and carpenter contractor were present on the premises when a line was stretched between the two wooden stakes marking the boundary line between lots 7 and 8 previously referred to, and that the house was set back so that it was approximately eight to ten feet to the west of said line so stretched between said two stakes. Mr. Damrau testified that said two stakes were pointed out by Mrs. Connor from whom the Baumgartners had purchased lot 8, and who then owned lot 7, as lot 7 was not conveyed to plaintiffs until November 6, 1931. Subsequently over the years such wooden stakes disappeared.
In 1932, the plaintiffs erected a home on lots 5 and 6, but no building was placed upon lot 7. There is a downward slope from the house erected by the Baumgartners on lot 8 to the east, which slope extends some distance into lot 7. The soil excavated from the Baumgartner house was placed so as to form a flat topped plateau extending from the east side of the house eastward to the boundary line between lots 7 and 8, as marked by the two original wooden stakes. The top of this plateau was sodded with grass by Mr. Baumgartner and Mr. Damrau. The plaintiffs constructed and maintained a rock garden on the side of the slope below the top of the plateau.
There seems to have been no controversy between the parties as to the location of the disputed boundary line until 1947, when a survey was made at the instance of the plaintiffs which indicated that the dividing line between lots 7 and 8 was not where the parties previously thought it existed but was close up against defendant's house on lot 8. The defendant and her husband live in Milwaukee and have used the house for summer recreational purposes, while the plaintiffs reside permanently in their house located on lots 5 and 6. After the dispute arose over the boundary line Mr. Damrau continued to cut the grass on the plateau during the times he and the defendant were occupying the house on lot 8, but when the Damraus were not there then the plaintiffs surreptitiously cut such grass.
At the trial two surveyors, Dancey and Connell, who had surveyed the disputed boundary line, testified in behalf of plaintiffs, and one surveyor, Forrer, who had also surveyed such line, testified in behalf of defendant, and plats showing the results of such three surveys so made were received in evidence. The surveys by Dancey and Connell placed the disputed boundary line between lots 7 and 8 close up against defendant's house, such line being only one-tenth of a foot from the southeast corner thereof and only 3.1 feet from the northeast corner thereof. On the other hand, the Forrer survey placed the disputed line 6.86 feet from the southeast corner and 10.75 feet from the northeast corner of the house. The trial court found that the surveys made by Dancey and Connell established the true boundary line as fixed by the recorded plat. If this case turned on the point of whether or not such finding of fact by the trial court was against the great weight and clear preponderance of the evidence we would necessarily have to affirm that part of the judgment so...
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