Broadway-Wisconsin Investment Co. v. Sentinel Co. , 192 Wis. 338 ( 1927 )

RosenbeRRY, J.

It is contended here that the court erred in holding that the defendant had not acquired by adverse possession and estoppel the right to maintain its encroaching footings and its cornices and moldings. The trial court was clearly right in holding as it did for the reason that such possession as the defendant had of the plaintiff’s premises was neither open nor notorious. Ogden v. Straus Bldg. Corp. 187 Wis. 232, 202 N. W. 34; Illinois Steel Co. v. Tamms, 154 Wis. 340, 141 N. W. 1011.

An owner of land is not required, in order to prevent a trespasser from acquiring title thereto, to explore beneath the surface or to ascertain at his peril whether’or not an encroachment eighty or one hundred feet above the surface does or does not overhang his property. There may be cases, of course, as eaves of buildings and the like, where possession is open and notorious and the rule applies, but cases of that kind have no application to the facts here.

The plaintiff seeks a review of the finding of the trial court which denied it damages for loss of use and occupancy. The plaintiff contends upon its counterclaim that it had been deprived of the use of the premises for a considerable length of time by reason of substitution of the cantilever construction for that originally designed for the building and sustained damages on that account in the sum of $1,106. It also claims that it should have been allowed for the amount of its bill $859.82 for extra cost of construction paid by it to its contractors. Under sec. 274.12, Stats, (sec. 3049a), a respondent seeking to have reviewed errors committed against him is required to serve a notice of review. This notice must be served “any time before the case is set down for hearing in the supreme court,” and it must designate in what respect the respondent seeks a review, reversal, or modification of any part of the judgment or order appealed from. In this case no notice was served. There was, however, an understanding between the attorneys as to the printing of the case and an agreement that the case should be con-, sidered as if a notice had been served. This understanding was embodied in a memorandum and was firmly adhered to by counsel in this court upon the oral argument. There was the utmost good faith on the part of counsel. There are other considerations, however, which govern rather than convenience of counsel. The whole matter was discussed in American W. Co. v. McManus, 174 Wis. 300, at p. 317 (181 N. W. 235, 183 N. W. 250). 'While the service of the notice is not jurisdictional in a technical sense, nevertheless the court has an interest in knowing what questions are raised in the record upon an appeal. In practical effect the service of a notice to review amounts to a cross-appeal, and while a party may be relieved from default under that section, orderly practice requires that the statute be substantially complied with. Here there was no effort whatever to comply with the statute. It was in fact ignored. Nor is there any excuse given, nor does the record suggest any, for failure to give the proper notice. The statute plainly points out the manner in which the right to a review may be secured, and it would result in nothing but confusion and disorderly practice to permit oral or written stipulations, agreements, and understandings between the parties to be substituted for the prescribed method. In this case we may say that we have looked into the record far enough to sátisfy us that a different result would not have been reached if the finding complained of had been reviewed.

By the Court. — Judgment appealed from is affirmed.