#### Wille, Appellant, vs. Maas and another, Respondents.

*February 6*

February *24, 1914.*

*Trespass: Boundaries: Adverse possession: Counterclaim.*

1. Upon the uncontradicted evidence in an action of trespass involving the title to land, defendants are *held*to have acquired title by adverse possession to the strip in dispute.

2. In an action of trespass to determine the title to a strip of land and for damages, a counterclaim for trespass by plaintiff on the same land is connected with the subject of the action and hence properly pleadable.

Appeal from a judgment of the circuit court for Dodge county: Maetist L. Lueck, Circuit Judge.

*Affirmed.*

This is an action arising out of a dispute over the location of a line fence .dividing the property of the plaintiff on the north from that of the defendant's *Maas*and *Fehrman*on the south. Prior to the 9th of December, 1908, a fence existed dividing the property of the plaintiff from that of the defendants. In the fall of 1908 plaintiff had a survey made and such survey located the dividing line to the south of the existing fence, the strip between the old fence and the newly established line being 79.53 feet at its greatest width and narrowing down until it met the old line at' the west boundary of the *Fehrman*property and to a width of about forty-one feet at the east boundary of the *Maas*property. In December following plaintiff moved the old fence to the south to the line established by the surveyor as the proper dividing line between his property and that' of the defendant *Maas,*and in May, 1909, moved that part of the old fence which separated his property from that of *Fehrman*to the line established by the surveyor. In October, 1909, the above named defendants, together with their codefendants, whom they employed to assist them, removed the old fence from where it had been placed by the plaintiff and carried the posts and wires back onto the lands of the plaintiff north of the line of the old *275fence. Plaintiff began this action in justice’s court, alleging trespass. Tbe defendant's set up tbe necessary facts to show that tbe title to land would come in question and gave tbe necessary bond and tbe case was certified to tbe county court of Dodge county. Tbe defendants *Maas*and *Fehrman*then answered separately, setting up title by adverse possession to tbe respective portions of tbe strip of land in dispute adjoining tbe parcels of land wbicb tbey owned and also counterclaimed for damages for trespass. Tbe action was thereafter removed to tbe circuit court by reason of tbe filing of an affidavit of prejudice. At tbe close of tbe trial tbe court directed a verdict to tbe effect tbat tbe true boundary line between tbe property of tbe plaintiff and tbat of tbe defendants was along tbe north line of tbe strip in dispute and tbat tbe defendants bad tbe right to take down and remove the fence to tbe place where it formerly stood. By its answers to questions submitted on a special verdict the jury awarded damages to tbe defendants, and in accordance therewith judgment was entered dismissing plaintiff’s complaint and awarding damages to the defendants on their counterclaims. From such judgment plaintiff appeals.

For- tbe appellant tbe cause was submitted on tbe brief of *J. F. & J. F. Malone.*

For tbe respondents there was a brief by *Husting <&*Brother, and oral argument by *Paul 0. Husting.*

BabNes, J.

Tbe errors assigned relate to rulings on evidence, to instructions given and refused, to tbe decision of tbe court bolding tbat there was no jury issue on tbe question of title, and to tbe refusal of the court to sustain the demurrers interposed to tbe counterclaims of tbe defendants. •

No substantial question is raised in regard to tbe rulings on evidence, and it would be unprofitable to discuss them in detail.

We think tbe uncontradicted evidence showed tbat tbe de*276fendant' *Fehrman*had been in adverse possession of the portion of the disputed strip abutting on or part of the west half of the northwest quarter of section 9, township 9, range 16,. for more than twenty years before the 1908 survey was made, and that the defendant *Maas*had adversely and for a like period occupied that portion of the strip adjacent to or a part of the east half of the northwest quarter of said section. We do not find that any competent evidence tending to prove the contrary was excluded. The decision of the court was therefore right on this branch of the case.

The instructions refused and those given and to which exception is taken relate t'o the question of adverse possession. The court having correctly decided that there was no jury question in reference to title, these errors drop out of the case.

The remaining question is whether the defendants had the right to counterclaim in this action for the damages sustained by them by reason of the trespass committed by the plaintiff on their property. *Fehrman1s*damages were assessed at $8 and *Maas1*damages at $2.

A counterclaim may be set up for a cause of action connected with the subject of the plaintiff’s action. Sub. 1, sec. 2666, Stats. The trial in the circuit court was primarily one to determine title to the disputed strip and incidentally to recover damages for the trespass committed thereon. The subject of the action was the plaintiff’s primary right, together with the specific property involved. *McArthur v. Moffet,*143 Wis. 564, 128 N. W. 445.

The plaintiff’s cause of action being one to determine the title to real estate and for damages for the alleged trespass committed thereon, and the counterclaims being interposed to recover damages for invading the possessory right' of the defendants to the same real property, it must be held under the doctrine of *McArthur v. Moffet,*supra, that the counterclaims were connected with the subject of plaintiff’s cause of action and therefore properly pleadable in the action.

*By the Court.*— Judgment affirmed.