Zander v. Valentine Blatz Brewing Co.

• Decision Date: 02 February 1897
• Citation: 95 Wis. 162,70 N.W. 164
• Parties: ZANDER v. VALENTINE BLATZ BREWING CO.
• Court: Wisconsin Supreme Court

95 Wis. 162

70 N.W. 164

ZANDER

v.VALENTINE BLATZ BREWING CO.

Supreme Court of Wisconsin.

Feb. 2, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Ejectment by Hubert J. Zander against the Valentine Blatz Brewing Company. A nonsuit was entered at the close of the evidence, and plaintiff appeals. Affirmed.

Ejectment to recover 14 inches of land. Plaintiff owns lot 2, block 57, in the Seventh ward, city of Milwaukee. The defendant owns lot 1, immediately adjoining on the north. The north 14 inches of lot 2 is in dispute. The evidence showed that in 1891 the defendant erected a building on lot 1. In making the necessary excavations, the defendant excavated a few inches beyond the line, and put in a foundation, which, it appears, extended about 14 inches across the line, and under the north wall of the plaintiff's building. The plaintiff's possession was not otherwise disturbed, and he has ever since been, and now is, in possession of his building, which extends clear up to his line, and rests in part upon the wall. The only question in the case is whether the building by the defendant of this foundation wall 14 inches across the line constitutes a disseisin, so that ejectment will lie. The defendant, by his answer, disclaims title to the 14 inches in question, and alleges that the wall was built at plaintiff's request. At the close of the evidence a nonsuit was granted, and the plaintiff appealed.Fiebing & Killilea, for appellant.

Sylvester, Scheiber, Riley & Orth, for respondent.

WINSLOW, J. (after stating the facts).

When this case was here before, the merits were not decided. 89 Wis. 164, 61 N. W. 763. Now, however, the question is fairly presented whether ejectment will lie. Both parties cite and rely upon McCourt v. Eckstein, 22 Wis. 157. In that case it appeared that some of the stones of defendant's foundation wall projected eight inches over upon plaintiff's land, and that the plaintiff erected his own building eight inches away from his line, thus leaving the eight-inch strip unoccupied. It was held, in effect, that the plaintiff might treat the encroachment as a disseisin, at his election, and. if he had so treated it, he might maintain ejectment; and it seems further to have been held that there was enough evidence in that case to carry to the jury the question whether the plaintiff had elected to treat the defendant's act as a disseisin. In the present case there is, however, no such evidence. The...