Menzner v. Tracy , 247 Wis. 245 ( 1945 )

^* Motion for rehearing denied, with $25 costs, on September 11, 1945. Action by Warren Menzner and Edith Menzner, his wife, against Florence Tracy to quiet title to a strip of land as acquired by adverse possession. Counterclaim in ejectment. From a judgment for plaintiffs the defendant appeals.

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The complaint located the disputed strip as extending a few feet north of the strip to which plaintiffs were adjudged to have acquired possession. The issues were submitted to the jury by a special verdict containing two questions. The questions were framed in reference to a diagram of which a reduced reproduction is shown on the accompanying page. The line AB on the diagram represents the north line of the strip in dispute as described in the complaint. By question 1 the jury found that adverse possession had not been maintained for twenty years up to this line. The correctness of this finding is not attacked. Question 2 was divided into subdivisions (a) and (b). By their answer to (a) the jury found that adverse possession was maintained by plaintiffs and their predecessors in title for over twenty years up to the line CD on the diagram, which is a line a little north of and in line with the north side of a garage built by plaintiff Menzner extended east to where it cuts the true line of lot 1 referred to in the opinion; and by their answer to (b) they found that adverse possession was so maintained by the keeping of a garden up to line DE, which is the line CD extended to the westerly line of lot 1 referred to in the opinion. Controlling evidentiary facts are stated in the opinion. The plaintiffs brought action to quiet in them the title to a parcel of land which included a certain parcel sixty feet wide, herein referred to as lot 1, and a strip of land adjacent thereto on the north. The plaintiffs concededly have the record title to lot 1. The defendant has the record title to the south ninety feet of lot 2 adjacent to lot 1 on the north which includes the disputed strip, and counterclaims in ejectment to recover possession of it. The plaintiffs claim to have acquired title to the strip by adverse possession by themselves and their predecessors in possession for more than twenty years.

The record title of both parties stems from Agatha Ertl. The title to lot 1 runs from her by deeds to Sturm, 1893, to Peske, 1897, to Menzner by sheriff's deed in partition, 1939. The title to lot 2 runs from Ertl by deeds to Wolff, 1896, to Hackl, 1901, to Tracy, 1927. Menzner first got possession from Peske under lease in 1929; thence under lease from Mrs. Peske as surviving joint tenant and from Mrs. Peske's devisees; and thence under sheriff's deed through sale in partition brought by the devisees. The Menzner's claim of title by adverse possession springs from Peske's possession, and it is conceded that that possession if adverse was transferred successively to the Menzners and ripened into title and may be tacked on to the possession of Menzner to make up the prescriptive period, unless the succession was broken because the sheriff was never in possession. Clithero v. Fenner, 122 Wis. 356,99 N.W. 1027; Illinois Steel Co. v. Paczocha, 139 Wis. 23,119 N.W. 550.

There are dwelling houses on each lot fronting on Prospect avenue, a street running northeast and southwest. At the rear is Outagamie street, running north and south. The dwelling house on lot 1 was built by Sturm. Sturm afterwards built a barn, sometime prior to 1897. Lot 2 was then owned by Ertl or by Wolff who got the title in 1896. The adverse possession claimed stems from the erection of this barn. Mrs. Sturm testified that her husband in building the barn intended to and supposed he did place it entirely within the sixty feet in width that he knew lot 1 comprised lie in fact so placed it, as the jury and the court found, that the north side extended over the true line of lot 1 on to lot 2 approximately two and five-tenths feet at the northeast corner and five feet on the northwest corner. In placing the barn he lined the north side up, with the north side of the house he had previously built. No objection appears to have been made by the owner of lot 2 to this intrusion. The inference is warranted from this that this owner also supposed the barn was placed wholly within the true line. Thus both of the adjoining owners mistakenly supposed that the true line between the two lots was just north of the north side of the barn. Later during Hackl's ownership of lot 2 he built a fence attaching the easterly end of it to the southwest corner of a barn he had built with the south side six or eight inches from the north side of the barn built by Sturm and extending it westerly to or near to Prospect avenue, lining it up with the south side of his barn. His purpose in building the fence was to inclose his chickens within lot 2. The inference is warranted that he supposed his barn and consequently his fence was on the true line. Peske then owned and was living in the house on lot 1. The inference is warranted that Peske supposed the barn and fence were on the true line and recognized and acquiesced in the fence being on the true line. Ever after the erection of the fence as long as it stood Peske kept a garden and planted shrubs clear up to the fence; and after it was taken down by Hackl, Peske on the one side and Hackl on the other kept gardens up to the line the fence had occupied; and after Hackl conveyed to Tracy in 1927, Tracy on the one side as owner and Menzner on the other as successive tenant of Peske, Mrs. Peske and her devisees kept gardens up to that line.

The jury and the trial court inferentially found and might properly find from the evidence that the fence and the line between the Sturm and Hackl barns was mistakenly supposed to be and was accepted and recognized by the adjoining owners as being the boundary line between the properties. The Sturm barn stood as originally placed until Menzner tore it down in 1934 and built a garage on the site of it, placing the north side of the garage just south of the post on which the north side of the barn had set as the jury and the court inferentially correctly found under the evidence. The facts being as above stated the case is ruled by Krembs v. Pagel, 210 Wis. 261,246 N.W. 324, wherein it is held that a party's possession and occupancy with accompanying acquiescence of the adverse party's predecessors in title for more than twenty years up to the line he and his grantor regarded as the correct boundary line, settled the location thereof and the ownership of a disputed strip, regardless of whether the line was located with absolute accuracy on the true line. The acts here involved are fully as indicative of adverse possession and notice thereof as those involved in the Krembs Case, supra.

The rule of the Krembs Case, supra, is in accord with a note entitled "Adverse Possession — Mistake in Boundary," in 97 A.L.R. at page 15, on page 81 of which is a heading "Building encroachments as indicating adverse possession." Under this heading it is stated on page 82 as follows:

"The weight of authority is to the effect that one who remains in continuous, open, and exclusive possession of a building of a permanent nature, which projects over the boundary line, during the statutory period of time in which actions to recover possession of real property may be maintained, acquires title by adverse possession to that portion of the adjoining property covered by the structure, though the building was erected in ignorance of the location of the true boundary line, and supposedly upon land rightly owned by the builder."

Decisions of twenty-six states, including the Krembs Case,supra, are cited in support of the text quoted. Decisions of twelve states are cited to the contrary. In four of the latter there are decisions both ways.

As to the garden kept by Peske, on page 79 of the A.L.R. note above cited is a heading: "Possession acquiesced in as adverse." Under this heading cases from seventeen states, including the Krembs Case, supra, are cited to the proposition that possession up to a line recognized and acquiesced in as a boundary line is adverse as against the adjoining owner.

We consider the rule of this state is settled by the KrembsCase, supra, to be as stated in the above quotations from the A.L.R. note cited.

As to the contention of defendant that the sheriff's deed broke the continuity of the adverse possession, we consider that it did not have that effect. The strip was in possession Peske during his life, in Mrs. Peske's as surviving joint tenant after his death, and after Mrs. Peske's death in that of her executor or her devisees, and then in possession of the receiver in the action brought to partition the property among her devisees. While Menzner was in actual possession of the property he could not dispute the title of his respective landlords and his possession was constructively theirs. They all acquiesced in the use of the property up to the line and their constructive possession was through their acquiescence adverse. The sheriff's deed merely operated to transfer their adverse possession to Menzner and gave him the right to tack their adverse possession on to his own, which was obviously intentionally adverse. Mortenson v. Murphy, 153 Wis. 389,141 N.W. 273; Stalcup v. Lingle,76 Ind. App. 242, 131 N.E. 852. The privity necessary to exist to enable possessory rights to be transferred is merely a succession of relationships to the same thing. The relationships of Peske, his wife, the executor, and the receiver to the adjoining owner were all the same, and the sheriff's deed by operation of law passed the possessory rights resulting from that relationship. Illinois Steel Co. v. Budzisz, 106 Wis. 499,515, 81 N.W. 1027, 82 N.W. 534.

Appellant raises the point that the answer of the jury to the first question decided the case in her favor because by that finding the jury decided that the plaintiffs did not acquire title to the premises described in the complaint. The practice here involved was used in Krembs v. Pagel, supra, as what was done here was done there. The action was ejectment to recover a described strip of land claimed to have been acquired by adverse possession. A question was put covering the whole of it, which was answered "No" and another covering part of it which was answered "Yes." As the court set aside the answer "No" and gave possession to the entire parcel claimed, the case does not perhaps constitute a precedent for the course here taken. But the common sense of the practice speaks for itself. Moreover, the evidence having been all received without objection and supporting the findings of the jury, the complaint may be deemed amended to conform to the findings. Lindsley v. Farmers Exchange Investment Co.223 Wis. 565, 271 N.W. 364; Duffy v. Scott, 235 Wis. 142,292 N.W. 273; Forkenbridge v. Excelsior Mut. B. L.Asso. 240 Wis. 82, 2 N.W.2d 702.

By the Court. — The judgment of the municipal court is affirmed.