Wollman v. Ruehle

• Decision Date: 24 November 1899
• Citation: 80 N.W. 919,104 Wis. 603
• Parties: WOLLMAN v. RUEHLE.
• Court: Wisconsin Supreme Court

104 Wis. 603

80 N.W. 919

WOLLMAN

v.RUEHLE.

Supreme Court of Wisconsin.

Nov. 24, 1899.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Charles Wollman against Julius Ruehle. Judgment for plaintiff. Defendant appeals. Reversed.

This action in ejectment was decided by this court. 100 Wis. 31, 75 N. W. 425. Thereafter a second trial was had under the statute, and judgment again rendered for plaintiff, from which defendant appeals. The facts, except as noted in the opinion, are sufficiently stated in the report of the former decision.Christian Doerfler and J. H. Roemer, for appellant.

Ryan & Merton, for respondent.

DODGE, J.

Upon the appeal from the first judgment in this case three propositions of mixed fact and law were decided: (1) That the preponderance of the evidence established the correctness of the line occupied by the fence; the proof connecting the survey then before the court with the original lines run and monuments set not being strong enough to overcome the inference or presumption of fact resulting from the location of a fence at a time when original monuments were probably apparent, and its continuance since. (2) That the clear preponderance of the evidence established the location of a fence by agreement in 1856 as the true line, and its maintenance with occupation up to it on both sides for more than 20 years, and that such acts were sufficient to establish ownership. (3) That, independently both of the true location of the line and of the agreement thereon, the preponderance of the evidence established adverse possession under claim of title by defendant and his ancestor for more than 20 years; that he had acquired title, and plaintiff was barred by the statute of limitations. So far as substantially the same case is presented upon this appeal, the previous decision is res adjudicata, whether right or wrong. Crouse v. Railway Co. (Wis.; decided Nov. 7, 1899) 80 N. W. 752;Quackenbush v. Railroad Co., 71 Wis. 472, 37 N. W. 834;Lathrop v. Knapp, 37 Wis. 312.

1. As to the first proposition above stated, the evidence was very different on the second trial. Another survey had been made, and much testimony was introduced of the finding, not, indeed, the stakes or monuments themselves, but the bearing or witness trees specified in the field notes of the original United States survey, and that the points taken by the surveyor for section and quartersection corners corresponded with these references. Further, it was shown that in 1876 the town board caused a survey to be made and filed by one Kerns in compliance with sections 825, 826, Rev. St., and that the survey on which plaintiff relied was correct, as tested by Kern's monuments, as to which latter there was rather indefinite testimony from Kern's chain bearer that the government stakes, as well as witness trees, were found at the corners of the section in question, and stone monuments put in their places. The presumptive correctness of Kern's monuments is established by the statute (section 828, Rev. St.). The fact that the line betweenthe parties, being the one-sixteenth section line, was not at any time marked by original monuments, deprives it of some of the weight accorded ancient fences in City of Racine v. J. I. Case Plow Co., 56 Wis. 539, 14 N. W. 599, and Same v. Emerson, 85 Wis. 80, 55 N. W. 177, on the presumption that such old fences were located upon the original stakes then visible. In the light of this additional and different evidence, the former decision of this court is not res adjudicata as to the fact of the correctness of the fence as marking the true line, and we cannot say that there was any clear preponderance of evidence against the finding in favor of correctness of the surveyed line.

2. As to the two other propositions decided on the first appeal, most careful comparison of the record now before us with the former one fails to disclose any substantial or material variation in one from the other; and we are constrained to hold, as the court then did, that defendant's title to the land on this side of the fence is established by the great weight and preponderance of the evidence, both from an agreement confirmed by more than 20 years' occupation in accordance with it, and from a distinctly adverse holding for the statutory period of limitation. This conclusion is based upon the conclusiveness of the former decision in this case, and while it must be reached none the less whether, as we have said, that former decision were right or wrong, we mean not to imply any doubt of its correctness. If, as counsel urges, there is any measure of conflict between the holding of the court in Fuller v....