Opinion
November 3, 1953 —
December 1, 1953.
APPEAL from a judgment of the county court of Green Lake county: GEORGE E. OSTRANDER, Judge. Reversed.
For the appellant there were briefs and oral argument by William N. Belter of Wautoma.
For the respondent there was a brief by Lehner Lehner of Princeton, and oral argument by Philip Lehner, Sr.
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 fifty 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 rebuilding. 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 thirty 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.
The trial court in its memorandum opinion said in part:
"I am of the opinion that the plaintiff never did have adverse possession of this strip of land and that it had always been held under a deed and only claiming what the deed called for and that everybody thought the old fence was on the section line. So far as any evidence presented is concerned, that is the fact. The parties merely supposed the quarter-section line was where the old fence was and never beyond it and would, therefore, not be holding adverse but would be one of mistake as to where the line was."
The trial court was in error as to the law. In Malinowski v. Elliott, 254 Wis. 81, 83, 35 N.W.2d 331, this court stated
"Our court has held that the mere holding for a period of twenty years or more is all that is required and establishes a presumption of title unless such presumption is overcome by some evidence."
Similarly, in Mielke v. Dodge, 135 Wis. 388, 115 N.W. 1099, it was held that even though a fence had been erected along a line with the intent that this was the true line between certain lots, adverse possession attached to this land as established by a fence. Also, even though there was some contention on the part of the defendant that some discussion was had as to a survey, the court in the case of Brockman v. Brandenburg, 197 Wis. 51, 54, 221 N.W. 397, stated:
"Nor do we think the agreement to procure a resurvey, if such agreement were made, interrupted the adverse character of the possession. . . . The character of his possession [adverse possessor] was not changed, and we can see nothing in this incident that can be construed as an interruption of his adverse possession of the land."
In the case of Grell v. Ganser, 255 Wis. 381, 39 N.W.2d 397, it was held that a fence line was established as a line to which adverse possession attached, even though it appeared that the fence was put up on one side of a road for convenience, and all of the property making up the roadbed had been contributed by one of the parties; it was nonetheless held that his line had become the true line between the premises.
These rules have been followed by this court, and are further elicited and explained in 2 C.J.S., Adverse Possession, pp. 634-637, sec. 84. At page 634, it is stated:
"Under the generally accepted rule, one in possession up to a supposed line with an absolute claim of title thereto is deemed to hold adversely, although his claim of title may have originated in a mistaken belief that the supposed line was the true line, . . ."
And further, in 2 C.J.S., Adverse Possession, p. 635, sec. 84, it is stated:
"Possession for the statutory period under absolute claim of title up to a clearly defined boundary will ripen into adversary title irrespective of whether the claimed boundary is the true boundary, and although claimant admits that he did not know whether or not it was on the true line.
"It has been said that under such circumstances possession for the requisite period will ripen into adverse title, although it is shown that on taking possession claimant had no intention of taking what did not belong to him, or despite the fact that claimant is shown to have said that he wanted no more than was his, or had no intention of claiming beyond the true line, or that he had no desire to take any land belonging to the adjoining owner, . . . and, where he believes the marked line to be the true line and holds thereto under claim of right, it is immaterial what he might or might not have claimed had he known that he was mistaken."
The plaintiff therefore is entitled to a judgment quieting and establishing his title to that portion of the said northeast quarter of the southwest quarter lying east of the old fence line. This line was not determined by the trial court below. The great weight and clear preponderance of the evidence shows that plaintiff did not build upon the old fence line, but built his fence two feet to the west thereof at the northerly point. The judgment should provide that the old fence line commences at a point 14 inches west of the stake set by the surveyor as the northwest corner of the northwest quarter of the southeast quarter and should continue in a southerly direction to a point where it intersects the southerly half of the fence as now standing.
The trial court was also in error by awarding to the defendant title to the 29 rods of fence built by the plaintiff. Sec. 90.06, Stats., provides the procedure for the situation before us. Nor do we know of any provision authorizing the court to divide partition fences. This situation is also covered by ch. 90, Stats.; and a proper division should be made by the town board acting as fence viewers if the parties cannot agree upon such division.
In other respects we agree with the trial court, particularly with the statement that both plaintiff and defendant would have been far better off without bringing into court a matter involving so little in area and value of land. We affirm his conclusion that neither party should recover damages, and affirm his action in awarding disbursements to the defendant.
By the Court. — Judgment reversed and cause remanded with directions to enter a judgment consistent with this opinion. Upon this appeal the appellant shall pay the clerk's fee, and further costs are denied to either party.