Grell v. Ganser , 255 Wis. 381 ( 1949 )

^* Motion for rehearing denied, with $25 costs, on November 29, 1949. Action begun May 4, 1948, by James and Hilda W. Grell against Alvin and Rose Ganser for judgment declaring title to certain property to be in the plaintiffs and for damages for trespass. From a judgment of January 3, 1949, in favor of the defendants, plaintiffs appeal.

Plaintiffs and defendants own adjoining forties in the southwest quarter of section 12 in the town of Ithaca, Richland county. Plaintiffs' forty is the southwest forty; defendants' forty is the northwest forty and directly to the north. There is a dispute between the present owners as to the east-west boundary between these two forties.

Difficulty in determining the boundary is primarily due to the fact that from 1908 to 1932 a town road entered the west side of plaintiffs' land about four rods south of this north boundary and ran in a northeasterly direction across the forty. The eastern two thirds of this road ran approximately along the line between the two forties. Whether the road ran entirely within plaintiffs' forty, or partly in plaintiffs' and partly in defendants' forty, is in dispute. This occurs because at the western side of the forties a fence ran along the undisputed boundary and, at the point where the road was approximately parallel to the boundary, the fence was to the north of the road. The fence and the road stood in this manner until 1932 when the road was abandoned. In 1947 the defendants, who had purchased their forty in 1936, tore down the eastern part of the fence and began to use the land for several feet south of it.

Plaintiffs protested and the town board was asked to locate the boundary, which it did without satisfying both parties at a point to the south of the eastern two thirds of the old fence. Plaintiffs then brought this suit to have title to the disputed strip declared to be in them and for damages for trespass. They claimed that, (1) the true boundary was that fixed by the old fence; and (2) if it was not the true boundary, plaintiff had acquired that property by adverse possession and acquiescence in the boundary by owners of both forties for more than twenty years.

At the trial several surveys of the two forties were put in evidence. The original government survey laying out the townships did not locate the sixteenth lines, referred to in the testimony as eighth lines, and therefore was no help in determining the boundary between the two forties. In 1890 a survey, called the Appleby survey, was made by the county surveyor. In preparation for the trial, surveys were made by M. O. Carter, a private surveyor, Norbert Hartung, surveyor of Richland Center, and Alvin Bannister, county surveyor, who also surveyed the property in 1932.

The court ruled out the ancient fence as a boundary fence and decided that the line as now surveyed by Alvin Bannister was the true boundary. This line fixed the boundary at a point south of the old fence line and ran diagonally along the abandoned road. The court further found that plaintiffs had not acquired the strip to the north of the Bannister line by adverse possession.

On January 3, 1949, judgment was entered fixing this Bannister line as the boundary between the forties and ordering plaintiffs to erect the western part of a fence in accordance with that line. Plaintiffs appeal. The appellants brought this action claiming that they are the absolute and exclusive owners of all land connected with the southwest forty up to the line marked by an ancient fence which was built some distance north of an old but now abandoned highway. Thus they claim that the land contribution to the old road came entirely from their premises, and, upon its abandonment, the land again became a part of their property. The appellants are insisting that the fence was placed and exists as a boundary fence.

The respondents disavow that fence line and base their claim to ownership upon a line fixed by a survey of the lines of the section.

It must be conceded that a line can be established by acquiescence of the parties that may differ from a surveyed or true line. Wunnicke v. Dederich, 160 Wis. 462,152 N.W. 139, and cases cited therein; Husted v. Willoughby, 117 Mich. 56,75 N.W. 279; Pittsburgh Lake Angeline Iron Co. v.Lake Superior Iron Co. 118 Mich. 109, 76 N.W. 395; Whitev. Peabody, 106 Mich. 144, 64 N.W. 41; Jones v. Pashby,67 Mich. 459, 35 N.W. 152; Anno. 69 A.L.R. 1491. When long-continued possession of land up to a line has been acquiesced in by all interested in the ownership of a contiguous piece of land, the boundary thereby established becomes the proper boundary irrespective of the operation of the principles which would otherwise fix and determine its location. A survey establishing a line between adjacent owners will not revive the right of an original owner against an established boundary since all that the survey does is to establish the line and not the title.

In Parker's Salmond, Jurisprudence (9th ed.), p. 405, sec. 106, it is said: "Possession, . . . is the objective realization of ownership. It is in fact what ownership is in right. Possession is the de facto exercise of a claim; ownership is the dejure recognition of one . . . . The two things tend mutually to coincide." See Readings on the History and System of the Common Law, Pound and Plucknett (3d ed.), p. 639. The doctrine has been followed by the courts not to disturb such long acquiescence in a boundary line. It seems to be the recognized policy of the law to encourage such settlements as a means of suppressing troublesome disputes. Jones v. Pashby,67 Mich. 459, 35 N.W. 152; 8 Am. Jur., Boundaries, p. 802, sec. 80.

In his decision the trial court states: "So far as the evidence is concerned, it appears that the so-called north fence [the fence which appellants contend is the boundary line] has always been maintained by the Gansers [respondents] and their ancestors. . . . If the north fence was a partition fence, it in all probability would have been divided for maintenance purposes. There is no evidence that the owners of the south forty ever assisted in its building or maintenance." It is clear that the trial court considered the absence of evidence on this point of maintenance by the appellants important in determining if the fence was intended to be and was acquiesced in as a boundary.

However, it appears from a careful study of the record that the trial court was in error in holding that there was no evidence that the fence had been regarded as a boundary fence. The predecessors in title of both parties were brothers: Anthony Weidenfelt owned one forty and Nicholas the other. The evidence is that they regarded the fence as the boundary and maintained it. It appears from a survey made in 1890 at the request of the common ancestor of the two brothers, Anthony and Nicholas, that there was an old fence starting from a common corner. It further appears that no owner of the north forty ever made use of the land south of the fence except by permission of the owner of the south forty and that the north fence was considered to mark the boundary. There is undisputed testimony of several witnesses that the fence was mutually maintained. There is evidence that Anthony Weidenfelt, respondents' predecessor in title, said before the commencement of this action, in fact, before any question that the fence was a boundary fence was raised and certainly at a time when there was nothing to show an intent to deceive or misrepresent, that he did not farm between the fence and the road because "That don't belong to me. That belongs to Nick." The record discloses that the findings of the trial court are against the great weight and preponderance of the evidence and the judgment must be reversed.

By the Court. — Judgment reversed. Cause remanded with directions to enter judgment recognizing the ancient fence as the boundary and for assessment of damages to the plaintiffs.