Wiese v. Swersinske
| Decision Date | 01 December 1953 |
| Citation | 265 Wis. 258,61 N.W.2d 312 |
| Parties | WIESE, v. SWERSINSKE. |
| Court | Wisconsin Supreme Court |
The plaintiff is the holder of the record title to the northwest quarter of the southeast quarter of section number 15, in township number 17 north, of range number 12 east, in Green Lake county. Until June, 1951, Wallace Brooks was the holder of the record title to the northeast quarter of the southwest quarter of said section, township and range. For more than 50 years prior to 1951 a line fence existed between the two tracts, which was recognized as the true boundary between the premises. The north half of the line fence was maintained by Brooks and his predecessors in title and the south half thereof was maintained by the plaintiff, Wiese and his predecessors in title during all of that period. Both tracts of land were used for agricultural purposes.
In June, 1951, the defendant purchased from Brooks a strip of land one rod in width across the easterly side of the Brooks land. Under the agreement the defendant was to fence the line between Brooks and the right of way, and was to maintain half of the line fence between his right of way and the land of the plaintiff. The north portion of the line fence was in bad condition and needed re-building. The defendant removed the posts and wire for a distance of about 29 rods south from the north end thereof. About five days thereafter the plaintiff constructed a new fence in place of that which had been removed by the defendant.
As plaintiff was nearing the end of his fencing job and it was almost completed, the defendant came to plaintiff and insisted that he had not built along what the defendant considered to be the correct line between their respective premises. Defendant then pointed to a tree some distance to the north (the exact location of which was not determined), and informed plaintiff that the line should run directly toward that particular tree. Plaintiff insisted that the new fence was built upon the correct location and therefore he did not move the fence in accordance with the defendant's wishes.
Subsequent thereto the defendant employed a professional surveyor, for the purpose of having him determine the survey line between the two forties. The survey indicated that the northwest corner of plaintiff's forty acres was located 38 inches east of the northerly portion of the new fence built by the plaintiff, and that the true line extended from that point to a point where it intersected the south half of the old line.
Upon the basis of that survey, defendant caused to be served upon plaintiff a statement of the findings of the surveyor, signed by the surveyor, and a notice signed by the defendant ordering the plaintiff to remove the fence to the surveyed line between the two forties within 30 days. Thereupon, plaintiff commenced this action for the purpose of establishing his title to all the land lying easterly of the fence; and for the purpose of recovering damages occasioned by the act of defendant in taking down and destroying a portion of the old fence. The defendant interposed a counterclaim in which he sought damages for the encroachment upon his right of way, including the cost of his survey and attorney's fees, and sought to quiet and establish defendant's title up to the line as found by the surveyor.
The trial court found that the new fence built by the plaintiff was not on the line where the old fence stood; and that it was the intention of the adjoining owners to maintain the fence on the quarter section line, and accordingly plaintiff and his predecessors in title had not gained any rights by adverse possession. The judgment dismissed both the complaint and the counterclaim so far as they related to damages; awarded no costs to either party, but allowed the defendant to recover disbursements from the plaintiff; established the line as it was located by the surveyor, ordered the plaintiff to maintain the north half thereof; and awarded the fence built by the plaintiff to the defendant. This judgment was entered on November 13, 1952, and plaintiff appealed.
William N. Belter, Wautoma, for appellant.
Lehner & Lehner, Princeton, for respondent.
The trial court, in its memorandum opinion said in part:
...
To continue reading
Request your trial
-
Peter H. and Barbara J. Steuck Living Trust v. Easley
...N.W.2d 540 (1962), explains that this has been the law since Ovig v. Morrison, 142 Wis. 243, 125 N.W. 449 (1910). 12 Wiese v. Swersinske, 265 Wis. 258, 61 N.W.2d 312 (1953); Grell v. Ganser, 255 Wis. 381, 39 N.W.2d 397 (1949); Wunnicke v. Dederich, 160 Wis. 462, 152 N.W. 139 (1915); Brew v.......
-
Walton v. Wilke
...Walton's possession of the boathouse for more than twenty years created a presumption of title in Walton. See Wiese v. Swersinske, 265 Wis. 258, 261, 61 N.W.2d 312 (1953). The subject area is well-defined as the area underneath the physical structure that is the boathouse. When a building e......
-
Nagel v. Philipsen
...as to the location of such line, the fence in each case had stood in the same location for more than twenty years. Wiese v. Swersinske, 1953, 265 Wis. 258, 61 N.W.2d 312; Grell v. Ganser, 1949, 255 Wis. 381, 39 N.W.2d 397; Wunnicker v. Dederich, 1915, 160 Wis. 462, 152 N.W. 139; Brew v. Nug......
-
Lindl v. Ozanne
...by adverse possession. Northwoods Development Corp. v. Klement, 24 Wis.2d 387, 392, 129 N.W.2d 121, 123 (1964); Weise v. Swersinske, 265 Wis. 258, 261, 61 N.W.2d 312, 313 (1953); Menzner v. Tracy, 247 Wis. 245, 251-52, 19 N.W.2d 257, 260 (1945). Adverse possession is found where the benefic......