#### Illinois Steel Company, Respondent, vs. Jeka and wife, Appellants.

*May 9 -*

*September 29, 1903.*

*Adverse possession: Presumptions: Continuity: Parol transfers:■ Court and jury.*

1. Actual, continuous, exclusive possession of land by a person and bis privies in estate for twenty years, unexplained, creates a presumption of fact that such possession and its commencement were characterized hy all the requisites to title by adverse possession, and that the title of the adverse claimant. is perfect.

2. Transfer of possession from one occupant to another may be by parol merely, without destroying the continuity of the adverse possession.

3. The evidence in this case, though tending to show (hy such' facts as the execution of bills of sale of the house instead of deeds of the land) that the claim of defendant and his grantors was not at all times adverse, is *held*not to justify the court in taking from the jury the question of adverse possession.

Appeal from a judgment of the circuit court for Milwau- ■ kee county: WabRen D. Taebant, Circuit Judge.

Reversed~

This is an action of ejectment, commenced July 1, 1897,. to recover possession of a small lot — being a part of govern*123ment lot No. 2, fractional section 33, town 7, range 22 east — ■ situated in the Eifth ward of the city of Milwaukee. The lot in question is 125-J feet in length by 33 feet in width at one end and 39^ feet át the other: Government lot No. 2 aforesaid was a part of what is known as “Jones Island” — a low, marshy piece of land between the original channel of Milwaukee Kiver and Lake Michigan, in the city of Milwaukee, a full description of which will be found by reference to tbe case of *Illinois Steel Oo. v. Budzisz,*115 Wis. 68, 90 N. W. 1019. The lot in dispute here is situated very near the lot in controversy in the last-named case, and lies within the limits of block 195, referred to in that case, and the street immediately north of said block. The defense relied upon in. the present case was adverse possession for twenty years.

Upon the trial the plaintiff proved record title in itself of said government lot No. 2, and also proved that the lot in dispute was a part of said government lot, and it was admitted that the defendants were in possession of the same at the time of the commencement of the action. Thereupon the defendants introduced evidence to substantiate their claim of adverse possession. This evidence tended to show that in 1874 one John Stin, with his wife, Eva, and one son Joseph, then being twelve years of age, went to Jones Island to livé, and lived in the house of one Patek about a year; that in the spring of 1875 the father built a house on the premises now in dispute, the same being then partially submerged and not fenced; that the father was drowned in the fall of that year, and that his widow and son continued to live in the house, and during the year 1876, with the help of relatives, filled a considerable space around the house with sand, gravel, and ashes, so as to make the lot above the surface of the water, which lot they inclosed with a fence during that year, whieh fence remained in the same place till the commencement of this action, and included the premises in dispute; that John Stin declared when he built the house that he would fill up *124tlie ground and that it would be his; that about a year after Stin’s death his widow married one Cinova, who thereupon came to live in the house built by Stin; that the son Joseph lived with his mother and Cinova in the house for about three years, and then left and boarded in the city of Milwaukee, and allowed his mother to remain in the house without rent, and that the mother and Cinova continued to live on the property till the year 1884, when the mother negotiated a sale of the premises to one Adam Paczocha for $300; that, upon making this sale, Eva and her husband made a bill of sale of the house, September 1, 1884, and received $300 from Pac-zocha, and surrendered possession to him; that soon after this the son Joseph, through his guardian, claimed that Paczocha must pay rent to him, and afterwards a settlement was made between Paczocha, Eva, and Joseph, by which $200 of the $300 consideration was turned over to Joseph, and Joseph executed a bill of sale of the house in December, 1884, to Paczocha; that from the time of John Stin’s death up to the time of the sale to Paczocha the property was claimed by Eva and Joseph as the homestead of the family; that Adam Pac-zocha bought the premises for his father, Joseph, and a short time after the purchase from Eva turned the same over orally to his father, who paid him therefor; that both Adam and Joseph Paczocha were informed by Eva that they bought the lot as well as the building; that Joseph Paczocha remained in possession after the purchase, and made further filling of the lot, and in 1891 gave the appellant *Michael Jeka,,*his son-in-law, permission to build a house on the west part of the lot, which he did and has ever since occupied the same as his home. Upon rebuttal the plaintiff introduced evidence tending to show that all that Eva and Joseph claimed to own was thé building, and also introduced a lease dated in 1876, purporting to be signed by Eva Stin by a mark, in which she acknowledged that she occupied a part of block 195 as tenant of the plaintiff. The signature, however, was not identified *125by any one as Raving been made by Eva, and sbe stated upon surrebuttal that she did not remember ever having signed it.

The trial court, upon motion, directed a verdict for the plaintiff, and the defendants appeal.

Eor the appellants there were briefs by *Fiebing & Killilea*and *M. G. Krause,*and oral argument by *O. J. Fiebing.*

For the respondent there were briefs by *Van Dyke & Van Dyke & Carter,*and oral argument by *W. E. Garter.*

*■*The following opinion was filed May 29, 1903:

Winsnow, I.

From the foregoing statement of the evidence offered by the defendants, it is evident that it was error to take the question of adverse possession from the jury. This evidence tended to show that the defendants and their privies in estate had held actual possession of the premises in dispute for more than twenty years prior to the commencement of this action. It was not necessary to show that there was paper evidence of transfer of possession from one 4o the other; the transfer may be parol and satisfy the requirement of continuity.

It is now well settled in this state that, when there has been continuous occupancy for twenty years, the presumption is then raised that such occupancy was under claim of right, and adverse to the world. *Bishop v.*Bleyer, 105 Wis. 330, 81 N. W. 413. This principle was expressed in *Illinois Steel Co. v. Budzisz,*106 Wis. 499, 514, 82 N. W. 534, as follows:

> “Actual, continuous, exclusive possession for the statutory period, unexplained, displaces the presumptions in favor of the true owner, and creates a presumption of fact that such possession and the commencement of it were characterized by all the requisites to title by adverse possession, and that the title of the adverse claimant is perfect. The statute so provides.”

When such continuous possession has been shown, it devolves upon the other party to show by evidence that it was *126not in fact adverse. Such, fact may, of course, conclusively appear by cross-examination of the adverse claimant’s own witnesses, but when such is not the ease the other party must produce the necessary evidence. In the present case, while there were some facts brought out in the defendant’s case which tended to show that the claim of defendant and his grantors was not at all times adverse, such as the execution of bills of sale of the house, instead of deeds of the land, we are not able to say that they were so strong as to justify the court in taking the case from the jury; nor was there anything conclusive on the subject introduced by the plaintiff in rebuttal. The question was one for the jury, under proper instructions.

*By the Courts*— Judgment reversed, and action remanded for a new trial.

A motion for a rehearing was denied September 29, 1903.