Frye v. Village of Highland , 109 Wis. 292 ( 1901 )

MaRshall, J.

We fail to discover in the record any support for the findings of fact, so called. They are so clearly wrong that it seems they must have been influenced by erroneous notions of principles of law applicable to the evidence. Respondent has the legal right to the use of an alley twenty-two feet wide on lot 8, bounded by the south side of said lot and reaching back more than 100 feet, acquired by adverse possession thereof for more than twenty years, according to the decision appealed from. Yet there is no evidence of any essential element of such possession. The true owner was never disseised, as it appears, for an instant, by plaintiff or any person in whose right she claims. Such owner used the alley for a time as a necessary part of an entire hotel property, it being the only way possessed by her for reaching the hotel barn from Main street or going direct to such street from the barn.. After the discontinuance of the hotel she continued to use the alley as a private Avay to the barn till well into the alleged twenty years of adverse possession. Those who patronized the barn must be presumed to have used the alley, provided by the owner for reaching it, as her property, by her invitation; and those who used it who were not her patrons must, under the circumstances, be presumed to have done so by her indulgence, there being no evidence to the contrary. The latter class of persons includes respondent and those under whom she claims. Their use commenced when the alley was clearly a private way for reaching the hotel barn. That circumstance indicates that the use was permissive, and there is no evidence that it changed to a hostile character at any time. The rule is elementary that permissive use, however long continued, will not ripen into title by adverse possession. Pettigrew v. Evansville, 25 Wis. 227; Fryer v. Warne, 29 Wis. 511; Wilkins v. Nicolai, 99 Wis. 178.

Respondent’s counsel seems to think -the case is ruled by Carmody v. Mulrooney, 87 Wis. 552, and Wilkins v. Nicolai, supra. In our view those cases condemn the judgment appealed from at all points. They rest on the doctrine that an unexplained, continued use of land for twenty years raises a presumption that it was characterized during the whole period by all the essentials of adverse possession, and prima facie establishes it, but that such presumption may be overcome by evidence that the occupation was under some license, indulgence, or special contract inconsistent with the claim of right by the occupant. Here, there was no unexplained use for twenty' years, or for any other period. The occupancy at the commencement was neither exclusive nor hostile. It is perfectly explained by the proof that the way was established for the convenience of the owner of the fee as the means of reaching the hotel barn, and that those not using it by invitation, as before indicated, did so by mere indulgence.

One of the foundation principles of adverse occupancy is that it must be of such a character as to challenge the right of the true owner to disturb it and to make that challenge sufficiently significant that such owner will not be liable, without negligence, to fail to discover its existence. That is necessary in order to satisfy the requisites of disseisin. An occupancy that commences by permission of the true owner cannot operate as a disseisin of him till his right is denied and the denial made sufficiently obvious to reasonably call upon him to act if he does not intend to submit to the changed attitude of the occupant. ' *

The statute of limitations by means of which the title to property may be taken from one person and bestowed upon •another, is grounded on laches. So occupancy, disseising the true owner, does not exist until it is visibly in defiance of the true owner’s rights. Lampman v. Van Alstyne, 91 Wis. 417. It does not operate to deprive the true owner of bis title unless it continues uninterrupted in the same right for the full statutory period. There being no indication of hostile use in this case, it seems useless to continue the discussion.

The trial court does not appear to have considered the claim that the alley was a public way and became so by dedication or continued adverse use. The evidence on that branch of the case would not sustain a decision in respondent’s favor. It does not show any intention to surrender the premises to the public for a thoroughfare, and_ without that there can be no highway by dedication. Tupper v. Huson, 46 Wis. 646. The way in its inception, as before indicated, was private. The fact that persons other than those who used it by invitation were permitted to do so does not militate against its private character. Being private at the start, it would require unmistakable evidence of a change to a public thoroughfare, and uninterrupted use as such for the statutory period, to give it the character of a highway by user. Nothing of that kind appears.

By the Court.— The judgment is reversed, and the cause remanded with directions to dismiss the- complaint and render judgment for defendant for costs..