Wilson v. Stork

• Citation: 171 Wis. 561,177 N.W. 878
• Parties: WILSON v. STORK.
• Decision Date: 01 June 1920
• Court: United States State Supreme Court of Wisconsin

171 Wis. 561

177 N.W. 878

WILSON

v.STORK.

Supreme Court of Wisconsin.

June 1, 1920.

Appeal from Walworth County Court; Jay F. Lyon, Judge.

Action by W. J. Wilson against Albert Stork. Judgment for defendant, and plaintiff appeals. Reversed, with directions.E. T. Cass, of Whitewater, for appellant.

Easton Johnson, of Whitewater, for respondent.

ESCHWEILER, J.

This is a line fence controversy. The trial court in his decision expressed regret that this controversy over a little strip of land of small value was not settled between the parties instead of having been made a matter of legal controversy. We concur most heartily in that view of the situation.

The plaintiff and his father, predecessor in title, since about 1860 were in continuous possession of a farm in section 16 in the town of Richmond, Walworth county, this state. Just south thereof is the farm which has been owned by the defendant since about 1911.

As early as 1860 a fence had been erected and thenceforward maintained on the east end of the 80 rods separating the two farms. Subsequently, and more than 20 years preceding the commencement of any trouble between the parties hereto, the fence had been completed on the west end, so that for a period of more than 20 years there was a fence along the entire 80 rods marking the limits of occupancy of each farm. A survey had been made by one Tubbs, then county surveyor, more than 20 years prior to 1913, and the line run by him appears to have been substantially along such old fence. Under defendant's own testimony the fence was there at the time he entered into possession of his farm, and since then each of the parties occupied their respective farms up to such fence.

Prior to defendant's occupancy the west 40 rods of such fence had been by tacit understanding and acquiescence kept and maintained by plaintiff and his predecessors, and the east 40 rods by defendant's predecessors.

About the fall of 1913 some conversation was had between the parties with reference to rebuilding this fence, and about February, 1914, the defendant removed the old fence as it then stood on the east 40 rods and set several fence posts, one on the east end of the line, and, as he claims, in the hole in which the old fence post had been standing, and another at the center of the 80 rods some 2 1/2 feet north of where the old fence had stood. He also placed one or more posts between such east and west posts of his proposed fence line. This new line so proposed to be fenced by him was objected to by the plaintiff.

In the spring of 1914 the supervisors of the town were called in unofficially to suggest the correct line between the parties so that the fence building might continue. Their proposed line was also to the north of what had been the old fence. This again did not meet the plaintiff's approval, and it was then and there orally agreed between the parties hereto that one William Child, then county surveyor, should be called in to make a survey, each to pay one-half of the expense thereof and to abide by the result of such survey. It was substantially agreed between the parties at the time Child made his survey that the west end of the 80 rods was practically as indicated by the fence post which had been placed there by plaintiff, although defendant at times in his testimony and by other evidence contended that such post was placed some 8 inches south of the real line, but nevertheless it was accepted as the correct point for the west end and so treated by Mr. Child. The line established by Mr. Child was north of the place where the defendant had replaced the east post line, and at the center thereof was a little north from the post there placed in the preceding February by defendant. The parties paid their respective portions of Mr. Child's bill, and he sent a copy of the sketch made by him of the survey to each of the parties, but the plaintiff promptly returned his copy.

There is testimony supporting a finding made by the trial court that at the time Child finished his survey and while the parties were still there plaintiff expressed satisfaction with such line, and directed the defendant to proceed to build his 40 rods of fence along such line. It is undisputed, however, that such acquiescence, if any such there was, was but momentary; for immediately upon defendant starting to erect a new fence along the line of Child's...