Sheppard v. Wilmott

Lyon, J.

If the defendant was the owner of the land in controversy, he had the undoubted right to make peaceable entry thereon and remove the fence, notwithstanding the plaintiff was in possession thereof. There is nothing in the record tending to show that such entry was made “ with strong hand, nor with a multitude of people,” and we therefore infer that it was made “ in a peaceable manner.” (R. S. sec. 3360.) The defendant derives his title through mesne- conveyances from the original patentee, Hotchkiss. If the latter obtained title under the government patent to him, the record title is in the defendant, for no attack is made upon any of such mesne conveyances different from that made upon the patent.

The learned counsel for plaintiff maintained in his argument that the patent did not convey the land to Hotchkiss, because the land described in it is “ the northeast quarter of the southeast quarter of section 8,” and not lot 4. The argument is that the description does not include any land north of the quarter-section line, and consequently does not include the triangular piece in question, which is north of such line. The government survey and official plat is in evidence, and the plat shows on its face that lot 4 includes such triangular piece. The omission of the quarter-section line along its south side, and the facts that the quantity of land in lot 4 is marked upon the plat, and that it contains over thirty-nine and one-half acres, render this plain. The quantity of land in a forty-acre government subdivision, not fractional, is never marked on the official plat thereof, and, if it was, this lot’ could not contain thirty-nine and one-half acres, without including therein the triangular piece. Including the same, it would contain just about that number of acres. All this is obvious from an inspection of the plat. The lot should have been described in the patent as lot 4, but we think the description therein is the equivalent of lot 4. This appears from the fact that *19 the number of acres in lot 4, to wit, 89.56, is specified in the patent, and was paid for by the patentee. Moreover, the governmental officials had no authority to convey a portion of lot 4, and not the whole of it, and it cannot be presumed they intended to do so.

The fact that lot 4 is in two quarter sections is not important. A given fractional lot may be crossed by a quarter section line, as in Shufeldt v. Spaulding, 37 Wis. 662 , and often is. Martin v. Carlin, 19 Wis. 454 , is relied upon by counsel as establishing a contrary rule. But it does not. In that case there was a mistake in the government survey and plat, and it was found impossible to adjust a division line between two fractional lots, so as to fulfil all the'conditions of the plat and corrected survey. The court established the line as it was located on the plat. We do the same here, and thus fulfil all the conditions of the plat, because there is no mistake therein to prevent. We conclude the court correctly found that defendant held the record title to the land in question when he took down the fence. It follows that he committed no trespass in so doing, unless the plaintiff has shown a better title than his.

It. is maintained:by counsel for plaintiff that De Puy, under whom the plaintiff claims, obtained title to the land by more than twenty years adverse possession thereof. • The circuit court negatived the claim, and we think the findings in that behalf are fully supported by the evidence. It will serve no useful purpose to discuss or even state the testimony. It has been carefully examined, and it impresses upon our minds the same conviction it did upon the mind of the learned circuit judge, as expressed in the findings of fact. But if we are wrong in this view,— if De Puy was in the adverse possession of the land in question from 1853, as counsel for plaintiff maintains,— such possession is not available to the plaintiff, for reasons which will now be stated. In 1887, De Puy exécuted to the plaintiff a con *20 tract for the future conveyance to him of certain lands, described therein by metes and bounds, which includes lot 8, but does not include the triangular piece in dispute. A year later, and a year before the alleged trespass was committed, plaintiff released from the contract a strip of land on lot 8 along the whole west line thereof, adjoining lot 4. He has therefore no conveyance, or agreement for one, of such triangular piece. On the authority of Graeven v. Dieves, 68 Wis. 317 , he cannot, under these circumstances, have any benefit of De Puy’s adverse possession. See, also, Childs v. Nelson, 69 Wis. 125 , and cases cited.

So, in any view of the case, plaintiff had the mere naked possession of the land without title or color of title; -and the defendant, having the absolute title thereto, might lawfully make peaceable entry'thereon and remove the fence without committing trespass or rendering himself liable to respond to the plaintiff in damages for so doing. The judgment of the circuit court must therefore be affirmed.

By the Court. —Judgment affirmed.