#### Wollman, Respondent, vs. Ruehle, Appellant.

*May 9*

May 24, *1898.*

*Boundaries: Fences: Acquiescence: Presumptions: Adverse possession: Tenants in common.*

1. Although at the time when a fence was built the exact location of the true boundary line was not known by the parties, yet where the line of the fence was considered to be such true line, acquiescence therein and undisputed possession up to the fence for over forty years raises a strong presumption that the line so recognized is the true line; and such presumption is not overcome by the mere foot that a survey, made long after government monuments have: been obliterated or lost, reveals another line.

2. Possession by one tenant in common, adverse to a third person, is-the possession of all the cotenants.

*323. Proof of uninterrupted, open, and exclusive possession of land for a period of over twenty years, by one not owning the legal title and his privies, if unexplained, establishes the fact of adverse possession from the beginning.

Appeal from a judgment of tbe circuit court for Wauke-sha county: James J. DicK, Circuit Judge.

*Reversed.*

Ejectment for a small strip of land, containing about TVo-acres. On October 18, 1839, one John Rock entered tbe land owned by botb plaintiff and defendant. Tbe title to tbe east balf of tbe tract came by mesne conveyances to plaintiff, and of tbe west balf to defendant. In 1856 tbe title to plaintiff’s land was in one Philip Heavner, and that of defendant in Alois Mallsacher. At that time there was a fence, supposed to be on tbe line between tbe two tracts, and which has been maintained substantially in tbe same place to tbe day of trial. Shortly prior to tbe commencement of this action, tbe plaintiff procured a survey of tbe land to be made, from which it appears that defendant’s fence is over on plaintiff’s land a little less than twelve feet. Tbe evidence of defendant tends to show that Mallsacher and Heav-ner agreed on this fence as tbe boundary line, and that defendant’s grantor was to keep up tbe north balf and plaintiff’s grantor tbe south balf. Tbe fence has since been so maintained by tbe owners of the land. Defendant’s father purchased tbe westerly tract in 1856, and tbe land has been cultivated and worked for farm purposes up to tbe fence since that time.

Defendant’s father died in 186Y, leaving a wife and several children. Defendant continued to reside on and work tbe farm, and in 18YY secured quitclaim deeds from tbe other heirs of their interest in tbe land.

Tbe court found that tbe plaintiff was tbe owner of, and entitled to tbe possession of, tbe disputed strip, and judgment was entered for tbe recovery of tbe possession of tbe •same. Prom this judgment tbe defendant appeals.

*33For the appellant there was a brief by *Christiam, Doerfler,*and oral argument by *John H. Roemer.*

They argued, among other things, that in order to create the privity of estate requisite to enable the subsequent occupant to tack to his possession that of a prior occupant it is not necessary that there should be a conveyance in writing. The possession of the prior occupant may be passed by operation of law, as in case of descent. Wood, Limitations (2d ed.), § 271; Newell, Ejectment, 740; Sedgwick & W. Trial Tit. Land (2d ed.), §§ 747, 748; *Sherim, v. Braelcett,*36 Minn. 152.

For the respondent there was a brief by *Rycm dé Merton,*and oral argument by *T. E. Rycm.*

They contended, *im,t&r*alia,, that while it is not necessary, in order to create such privity as will enable a subsequent occupant to tack his possession to that of the prior occupant, that there should be a conveyance in writing, and although such prior possession may be transferred by parol, yet it must clearly appear that the particular premises, as in this case the strip in dispute, were in fact embraced in the deed or transfer in whatever form it may have been made. No presumption can be indulged in on this subject. The defendant wholly failed to show any such transfer of the premises or the strip in dispute, and is therefore not permitted under the law to tack the previous possession of his father to his in order to make out the statutory bar. *Ryan v. Schwamtz,*94 Wis. 403; *Syd-nor v. Palmer,*29 id. 252; *Graeven v.*Pieves, 68 id. -317; *Allard v.*Fitzgerald, 87 id. 516; *AUis v.*Field, 89 id. 327.

Bardeen, J.

The undisputed evidence shows that in 1856, at the time defendant’s father purchased the westerly tract, he was informed that the fence was on the true line, by both his grantor and Heavner, the owner of the other tract, and that it was then agreed which portion of the fence each should keep up. It is further established beyond dispute that defendant’s father occupied the premises on his side, up *34to tbe fence, until bis cleatb in 1861, and that defendant remained in possession witb tbe consent of tbe other heirs, and as one of tbe claimants to tbe land, until be secured tbeir title, and tbence on to tbe commencement of this suit. It is also equally certain that when tbe fence was first established tbe exact location of tbe true line was not known by the pasties, but that tbe location where tbe fence was actually built was considered tbe true line, and was agreed upon and lived up to for over forty years without question. Long acquiescence in tbe line so established, witb undisputed possession for such a long period of time, raises a strong presumption that tbe line so recognized is tbe true line, and is not overcome by tbe mere fact that a survey, made long after government monuments have been obliterated or lost, reveals another line. Such is tbe bolding in *Welton v. Poynter,*96 Wis. 346, and is a rule in favor of tbe stability of title.

Tbe possession of defendant or bis father was not simply permissive. It was distinctly hostile, and founded upon tbe agreement and location of tbe fence. Tbe son’s possession was eo-extensive witb that of bis father. He held the premises after bis father’s death, claiming an interest in his own right, and by permission and under agreement witb the other heirs. Tbe possession of one tenant in common is tbe possession of all tbe cotenants. Newell, Ejectment, 128,129. And in general all acts done by a cotenant, relating to or affecting tbe common property, are presumed to have been •done for tbe benefit of all tbe cotenants.

Independently of tbe agreement to establish tbe line, there seems to be ample proof of possession of defendant, and those in privity witb him, to carry it far beyond the statutory period of limitation. Sec. 4207, R. S. 1878, provides that “ no action for tbe recovery of real property or tbe possession thereof, shall be maintained, unless it appear that tbe plaintiff, his ancestor, predecessor or grantor, was seized *35or possessed, of the premises in question, within twenty years before the commencement of such action.” The answer sets up that the plaintiff has not been so seised or possessed, and the proof amply sustains such contention. When plaintiff produced proof of title from the common grantor, showing legal title in himself, under sec. 4210, R. S. 1878, the presumption arose that he had been possessed of the disputed premises within the time prescribed by law, and that the possession of defendant was deemed to have been under, and in subordination to, the legal title. When, however, the defendant showed uninterrupted, open, and exclusive possession for a period of over twenty years, by himself and his privies, such possession, unexplained, established the fact of adverse possession from the beginning. This question is so fully and ably discussed in *Wilkins v. Nicolai,*99 Wis. 178, that it needs but a reference to that case to settle the questions here involved adversely to the plaintiff. Here there was no attempt made to explain away or attack the character or nature of defendant’s possession, so that under the rule laid down in the cases cited the finding and judgment should have been for defendant.

*By the*Gowvt.— The judgment ■ of the circuit court is reversed, and the cause is remanded with directions to enter judgment for the defendant.