#### Wunnicke, Appellant, vs. Dederich, Respondent.

*March 24*

April *13, 1915.*

*Boundaries of land: Ancient fences.*

Ancient fences, built on what were supposed to be the boundary lines of the tract of land in dispute and maintained for at least thirty and probably fifty years, are *held*in this case to fix the correct boundaries, as against modern surveys conflicting therewith and with each other.

*463Appeal from a judgment of tbe circuit court for Rich-land county: Geougb CleMBNTsoN, Circuit Judge.

*Reversed.*

Ejectment. Tbe parties to this action are tbe owners of adjoining farms, and tbe plat given on p. 464 (adapted from Exhibit B) shows tbe location of their respective lands.

On this appeal tbe controversy is confined to tbe triangular five-acre tract in tbe southeast quarter of tbe southeast quarter of tbe section, no appeal having been taken from tbe finding of tbe circuit court establishing tbe true boundary line between tbe northwest quarter of tbe southeast quarter and tbe southwest quarter of tbe southeast quarter. Some time previous to tbe commencement of this action a survey of tbe lines of this section was made by Marshall Appleby, tbe county surveyor, in pursuance of an order of tbe county court. Being dissatisfied with tbe Appleby survey, plaintiff caused a survey to be made by one Shranke, and be established tbe line between tbe Appleby line and tbe location of tbe old fence, as shown on tbe plat, which bad been located there for over thirty years. Before tbe trial of tbe action Shranke died and plaintiff bad tbe lines again surveyed by E. J. Lunensehloss, who prepared tbe said plat, Exhibit B^ showing tbe respective surveys and line fences. Plaintiff brought this action to recover possession of land alleged to be unlawfully withheld from him by defendant, and in bis complaint be describes tbe triangular tract in question as follows: Commencing at tbe northwest corner of tbe southeast quarter of tbe 'southeast quarter of section 25, township number 10 north, range number 2 east, thence east along tbe forty line sixty-fonr rods to tbe center of tbe highway which traverses said forty acres in a southwesterly direction from tbe north line thereof, thence along tbe center of said highway in a southwesterly direction twenty-five rods, thence in a direct line to' a point on tbe forty-acre line two rods south of tbe place of beginning, and thence north to tbe place of beginning.

*464I i l Old. Ftwce. L<r>.« S£ S £ *ZDederich*SW *$£ 'Shreuxkt. Ltnt, T*vC *L*.. N W S £ WoN/v/^e _C¿íP. I - -

*465Tbe court found tbe true boundary line on tbe north to be tbe old fence, represented on Exhibit B by tbe black dotted line drawn across tbe forty, and that tbe west boundary is a line two rods long, extending south from tbe old fence line, and that tbe south boundary is a line drawn from tbe south end of tbe said two rods, running southeasterly to a point upon tbe east line of tbe tract, marked on Exhibit B “Shranke Corner,” and tbe east boundary a diagonal line running from Shranke’s corner northeasterly along tbe east line of tbe five-acre tract to tbe old fence.

Erom judgment entered dismissing plaintiff’s complaint ■this appeal is taken.

Eor tbe appellant there were briefs by *Burnham & Black,*and oral argument by *O. D. Black.*

Eor tbe respondent there was a brief by *Bancroft & Jolms,*and oral argument by *L. H. Bancroft.*

BaeNes, J.

Tbe southeast quarter of tbe section in which is located tbe strip of land involved in this controversy was settled more than fifty years ago, and fences were built presumably on what were supposed to be tbe boundary lines between tbe government subdivisions. As early as 1855, according to the abstract offered and received in evidence, tbe five-acre tract, tbe boundary of which is here involved, was carved out of tbe southeast quarter of the southeast quarter. It is undisputed that at an early day, perhaps not long after this particular parcel was separately conveyed, a fence was built on what was assumed to be its southwest boundary line, and that such fence was maintained for a great many years. It fell into decay, however, and at tbe time of tbe trial it bad disappeared, although tbe testimony shows that its location could be ascertained without difficulty. Tbe occupants of tbe lands caused a survey to be1 made by one Appleby. He located tbe southwest boundary line of tbe five-acre parcel to tbe north of tbe old fence. Tbe plaintiff was dissatis*466fied with this line and employed one Shranke to make a survey. Shranke located the east end of the south line ten feet to the south of the corner established by Appleby. Both seemed to have established the westerly end of such line at the same point. The two lines were ten feet apart at their easterly end and gradually converged until they met at a common point on the west boundary line. By agreement the plaintiff was to keep up the west half and the defendant the east half of the fence on this southwest boundary line. After the Shranke survey was made, plaintiff built his half of the fence on the Shranke line and the defendant built his portion on the Appleby line, leaving a jog where the fences should unite. The defendant testified that he ascertained that the southeast corner established by Shranke was correct and that he then moved his portion of the fence on to the Shranke line. This new fence had not been in existence for twenty years when this action was begun.

In his complaint, if we correctly understand it, the plaintiff relied on the Shranke survey as being correct. While this survey gave him less land in the so-called five-acre tract than did the boundary lines of the ancient fences, if adopted, it would have given him a strip of land along the boundary line between the northwest southeast and the southwest southeast, to which he would not be entitled if the ancient fences along that line established the true boundary line.

The defendant in his answer relied on the ancient fences as establishing the correct boundary /lines. So far as the southwest boundary line is concerned, and that is the only one now in dispute, the parties seem to have reversed their positions in this court, the plaintiff now claiming that the line of the old fence is the time boundary line and the defendant asserting the contrary.

The court correctly held that the old line fence which formed the north boundary line of the five-acre tract should be taken as correct and that the modem surveys should be disregarded as far as this line was concerned. When it came *467to tbe southwest boundary line it did not follow tbe ancient fence line nor tbe Shranke nor Appleby surveys. Tbe Shranke corner at tbe east end of tbe line was taken as being correct, but its westerly end was located about thirteen feet to tbe north of tbe Shranke line. This was no doubt because of tbe fact that in some of tbe deeds of conveyance of this parcel tbe length of tbe west line was given as two rods, and tbe length is so stated in tbe complaint. Tbe reason for taking the southeast corner established by Shranke as correct was no doubt in part at least because it was twenty-five rods from tbe northeast comer of tbe strip, this being tbe distance called for in tbe complaint and perhaps in some of tbe conveyances of tbe parcel of land.

There is a dispute in tbe evidence as to where tbe old line fence locates tbe southwest corner of tbe five-acre tract. Tbe question was not fully tried out, as tbe court beard very little testimony on the part of tbe defendant. There is no doubt whatever' on tbe testimony received that tbe southwest boundary line established by tbe court is for tbe most part north of tbe old fence line.

No good reason is apparent why the old fences should be taken as establishing tbe north line and be rejected as to tbe southwest line. It is true tbe plaintiff did not claim in bis complaint that tbe fence established this line, but neither did be claim that it fixed tbe north line. If bis claim was disregarded as to one line it should also have been disregarded as to tbe other. His claim now that tbe fence is tbe true line is no more inconsistent than is that of tbe defendant who asserts that it is not. When tbe court decided that ancient fence lines should control as against modern surveys it should have adopted all of such lines. Under tbe repeated decisions of this court tbe ancient fence lines around this parcel of land, maintained as they were for at least thirty and probably fifty years, should be taken as fixing tbe correct boundaries of tbe tract. *Tobey v. Secor,*60 Wis. 310, 19 N. W. 99; *Welton v.*Poynter, 96 Wis. 346, 71 N. W. 597; *Bishop v. Bleyer,**468105 Wis. 330, 81 N. W. 413; *Wollman v. Ruehle,*100 Wis. 31, 75 N. W. 425; *S. C.*104 Wis. 603, 80 N. W. 919; *Brew v. Nugent,*136 Wis. 336, 117 N. W. 813; *Budzisz v. Ill. S. Co.*139 Wis. 281, 119 N. W. 935, 121 N. W. 362; *State v. Lloyd,*133 Wis. 468, 473, 113 N. W. 964; *Pitman v.*Hill, 117 Wis. 318, 94 N. W. 40; *Gilman v. Brown,*115 Wis. 1, 5, 91 N. W. 227; *Peters v.*Reichenbach, 114 Wis. 209, 90 N. W. 184.

Tbe description in tbe deed to tbe plaintiff is ambiguous, but it seems to bave been taken for granted that it was intended to convey tbe five-acre tract originally carved out of tbe southeast quarter of tbe southeast quarter of section 25. We think it was error not to bold that tbe ancient fence fixed tbe southwest boundary line of tbe tract. If it is necessary to take further evidence to determine tbe .location of this fence, it should be taken.

*By the Gowrt.*— Judgment reversed, and cause remanded for further proceedings according to law1.