#### Hacker, Appellant, vs. Horlemus, Respondent.

*September 3*

*September 20, 1887.*

Appeal, *review of errors against respondent:*Ejectment, *whether de-‘ fendant’spossession ivas adverse a question for the jury:*Nonsuit.

1. Where, in an action by the owner of the south half of a certain ' quarter section of land against the owner of the north' half of the same quarter section, to recover a strip of land lying north of a . crooked fence, erected by the prior owner of such south half, but claimed to run south of the boundary line, which strip had been occupied by the defendant for more than twenty years, the evi- ' dence did not show conclusively whether such fence had been accepted and adopted by the parties as the line between them, nor under what claim the defendant took and retained possession, *held,*that the questions whether such strip was a part of the south half of such quarter section, and whether the defendant’s ipossession was adverse, should have been submitted to the jury, and a • nonsuit was improper.

.3. The rule that, under sec. 3070, E. S., on appeal by the defeated party, the successful party may take advantage of any errors committed against himself at the trial to uphold the judgment, applies only to cases tried by the court without a jury.

AJPPEAL from the Circuit Court for *Washington*County. The case is stated in the opinion.

For the appellant there was a brief by *P. c& T. O’Meara,*
      *281and oral argument by *P. O’Meara.*

They argued, among other things, that the court erred in granting a nonsuit. Evidence of adverse possession is always strictly construed, and whether the possession proved is adverse in fact is a question for the jury. *Graeven v.*Davies, 68 Wis. 312; *Sydnor v. Palmer,*29 id. 226; *Jackson v. Sharp,*9 Johns. 163; sec. 4210, E. S.; *link v. Doerfer,*42 Wis. 391; *Allen v. Allen,*58 id. 202; *Furlong v. Garrett,*44 id. Ill; *McPherson v. Featherstone,*3? id. 632; 3 Wash, on Eeal Property, 141; *Macklot v. Dubreuil,*43 Am. Dec. 550; *Beverly v. Burke,*54 id. 351; *Bader v. Ziese,*44 Wis. 103; *Lamb v. Goe,*15 Wend. 642; *Burrell v. Burrell,*11 Mass. 294, 298; *Jlotoard v. Reedy,*29 Ga. 152; *Brown v. Cockerell,*33 Ala, 45 '; *Irvine v. Adler,*43 Cal. 559; *Worcester v. Lord,*56 Me. 1 265.

The case was submitted for respondent upon the brief, of *Paul A. Weil,*attorney, and *Charles I. Hickox,*of counsel.

To the point that defendant had acquired a title to the strip in controversy by possession they cited *Stuyvesant v. Dunham,*9 Johns. 61; *Joyce v. Willia/nxs,*26 Mich. 339; *Rogers v. Shepla/r,*5 Cent. Eep. 295; *F. db M. Bank v. Wilson,*10 Watts, 261. Acts of exclusive possession and user raise a presumption of adverse claim. *Allen v. Allen,*58 Wis. 208; *Bartlett v. Seeor,*56 id. 530; *La Frambois v. Jackson,*8 Cow. 603; Wood on Limitations, 551. Whether the original entry was \ty mistake or not, the possession must be deemed adverse, and if continued for twenty years will bar the right of the true owner. *Crary v. Goodman,*22 N. Y. 1?3; *Swettenham v. Leary,*18 Hun, 284; *Cole v. Parker,*70 Mo. 372; *Melvin v. Prop. Locks db Canals,*5 Met. 33; *En-field v. Day,*7 N. H. 457; *French v. Pearce,*8 Conn. 439; *Robinson v. Phillips,*65 Barb. 418; *Humbert v. Trinity Church,*24 Wend. 587; *Overing v. Russell,*32 Barb. 263; *Johnson v. Gorham,*38 Conn. 513; *Campan v. Dubois,*Mich. 280; *Bryan v. Attoater,*5 Day, 188.

*282When the facts are undisputed, as in this case, the question whether the possession comes within the statute is for the court. *Munro v. Merchant,*26 Barb. 407; *Argotsinger v. Vines,*82 N. T. 313; *Union Canal Co. v. Young,*1 Wharton, 410; *Bradstreet v. Huntington,*5 Peters, 438; 3 Wash-burn, R. P. (3d ed.) 127. It is sufficient to sustain the nonsuit, that a verdict for the plaintiff on the evidence would be against the weight and effect of the facts shown. *Cutler v. Hurlbut,*29 Wis. 165; *Mather v. Hutchinson,*25 id. 27; *Cansón v. Madiaan,*15 id. 144; *Gready v. Heady,*40 id. 478; *Calloway v. Week,*54 id. 604; *Manny v. Glen-dinning,*15 id. 50; *Shoemaker v. Hinze,*53 id. 116.

Taylob, J.

This is an action of ejectment, brought by the plaintiff, to recover a strip of land which he claims to be the owner of, and which is a part of the south half of the southeast quarter of section 34, township 11 N., of range 19 E. The plaintiff is in possession of all the south half of said southeast quarter except the strip in question, under deeds conveying to him the south half of said southeast quarter. The defendant is in possession of the north half of said southeast quarter, under deeds conveying to him the north half of the said southeast quarter, and had been for more than twenty years before the commencement of this action; and, if the strip in question is not a part of said north half of the southeast quarter, still the defendant has in fact been in the actual possession of said strip of land for more than twenty years before the commencement of this action, and he now claims the right to hold the same by adverse possession, though it be admitted that it is a part of the south half of said southeast quarter.

The evidence shows that a Mrs. Clow, who is the grantor of the plaintiff, was in possession of said south half of said southeast quarter, more than.thirty years ago, claiming to own the same by virtue of a deed conveying to her said *283south half. That while she was so in. possession, her husband, on her behalf, built a fence, near the dividing line, between the south and north halves of said southeast quarter. The only witness who was called in respect to the building of this fence, says: “We could not find the landmarks on the west side, perhaps half way through, and Clow said, ‘I will be sure to get it [the fence] on my land.’” The evidence further shows that the fence was not built on a straight line, and has never been kept up in good repair.

The defendant’s evidence is that he has occupied all the land north of the fence, from the time he took possession in 1863, down to the commencement of the action, cleared some part of the land off, and cultivated up to the fence. He says he occupied up to the fence, because he did not know but what that was the line between the lands. The defendant claims that after he bought the lands he and the plaintiff divided the fence by parol, he agreeing to keep in repair the east half, and the plaintiff, the west half. This is denied by the plaintiff. Plaintiff also gave evidence tending to show that the defendant did not claim to own up to the fence, unless the fence was the true line between the north and south halves of the quarter section. Plaintiff testified that when he first bought the land, more than ten years ago, he spoke to the defendant about the fence, and told the defendant the fence was too,crooked, and he could not keep it on his land; that the defendant then asked him what he would take for it, that he refused to sell, and told him he would get Brosius to survey the line. Defendant replied that Brosius could not survey a straight line. He testified that the defendant did not then claim to own up to the fence. He also testified that after he got the line surveyed, Horlemus, the defendant,- asked time to build his part of the fence on the line.

At the close of the evidence the court nonsuited the plaintiff, as is alleged on the part of the appellant, on the' *284ground that the defendant had held the lands claimed adversely to the plaintiff for more than twenty years before the commencement of the action. From the judgment entered upon such nonsuit, the plaintiff appeals to this court, and alleges that the court erred in nonsuiting the plaintiff upon the evidence as it stood when the case was closed.

The claim made by the learned counsel for the appellant is that under the evidence it was a question of fact for the jury and not of law for the court, whether the possession of the defendant for twenty years and more was such an adverse possession as would bar the plaintiff of his right. Upon the proof admitted by the learned circuit judge in the case, there was certainly sufficient evidence to entitle the plaintiff to take the verdict of the jury as to the question whether the land in controversy was not a part of the south half of the southeast quarter of said section, described in the plaintiff’s deed of conveyance. If there was evidence sufficient upon this point to sustain a verdict for the plaintiff, the defendant was only entitled to a verdict in his favor upon the ground that ho had conclusively shown an adverse possession for more than twenty years before this action was commenced. This he could do, in the first place, by showing, by satisfactory and uncontradicted evidence, that the plaintiff and himself, or those under whom they claim, had agreed upon and established the fence in question- as a dividing line between their premises, and that the defendant had occupied the land on his side of the line for twenty years and more, previous to the commencement of the action, claiming to own up to the line. See *Bader v. Zeise,*44 Wis. 96, 102; *Tobey v. Secor,*60 Wis. 310, 313. It is hardly necessary to say that there is no such conclusive evidence in this case. In fact, the evidence shows that wffien the fence in question was first erected there was no agreement between the parties owning the lands. The fence was first constructed, according to the evidence, by the *285plaintiff’s grantor, without consultation with the adjoining-owner, and was not built or intended to be built on the exact line between the parties, but upon one side of the line. If this fence can in any sense be said to have been a line adopted by the adjoining owners as the true line between them, such adoption by the parties is not sustained by such clear and uncontradicted evidence as would justify the court in talcing that question from the jury. The direction of the learned circuit judge cannot be sustained on that view of the case.

The only other view of the case which would justify the court in directing a nonsuit or verdict for the defendant, is that the evidence conclusively shows that, when the defendant entered into the possession of his land, in 1863, which was conveyed to him by his deed, describing the lands conveyed as the north half of the southeast quarter,of said section, he took actual possession of this land lying north of the fence in question, claiming it a's a part of said north half of said southeast quarter, irrespective of the question of whether it was in fact a part of such north half described in his deed. The ordinary rule is that when a man enters into possession of land under a deed to him, he enters into the possession according to the deed, and takes possession of the lands described therein, and no other. If he claims to tak^- possession of land not described in the deed, the burden of the proof is on him that he took possession, in fact, of the lands not so described in his deed, and that he took such possession claiming to own the same, and in hostility to all other claimants. In order to make his possession hostile and adverse it may not be necessary to show any declaration of his showing the hostile intent at the time the possession was taken. The facts and circumstances attending the taking possession, the character of the possession, and its long continuance,' may justify a court or jury in finding the entry and possession adverse. Such continued *286actual possession for twenty years or more may in itself raise a presumption that the possession was taken originally under claim of title, and hostile to all other claims, and so continued. See *McPherson v.*Featherstone, 37 Wis. 632; *Allen v.*Allen, *58*Wis. 202-209; *Link v.*Doerfer, 42 Wis. 391, 394; *Pepper v. O'Dowd,*39 Wis. 538. In the case at bar the only evidence of an adverse possession on the part of the defendant, of the land in controversy, is that he took possession of the north half of the southeast quarter of said section under a deed or deeds, conveying to him only said north half; that he found, when he took such possession, a fence along the south part of the land conveyed to him, and near the south line of the lands described in his deeds, and has occupied up to said fence for more than twenty years, by using the lands in the ordinary way in which farmers use their lands. We are not prepared to say that under this evidence a jury might not be justified in holding such possession adverse to the plaintiff; but we are very clear that the court had not the right to say, as a matter of law, that such possession was taken and held adversely for the twenty 3rears and more. The fence was a crooked one, and in itself would indicate that it was not intended as the exact line of division of the north and south half of said quarter section, which in the nature of things would be a straight line. And a jury or court might well infer, that the defendant’s occupation up to the line was not made with the intent to claim that the fence was the true boundary between the parties. In addition to this there was evidence given on the part of plaintiff tending, at least, to show that the defendant did not claim the fence as the true line between the parties, and that there was no intention on his part to claim beyond such true line.

In our opinion, the court should have submitted the case to the jury upon the question of the adverse possession of the defendant, and that it was error to take that question from the jury.

*287The learned counsel for the respondent insist that the non-suit ordered by the court should be sustained, because the land sought to be recovered is not sufficiently described in the complaint. It is very evident the learned circuit judge did not order the nonsuit on that ground, and, so far as we can ascertain from reading the description, it is sufficient, and a surveyor would have uo difficulty in locating the tract. The learned counsel have also insisted that the learned circuit judge erred in admitting the evidence offered by the plaintiff to show his title to the land in controversj’’. The court having ultimately decided the case in favor of the defendant, he cannot, upon an appeal by the plaintiff, take advantage of any errors committed against him on the trial. The rule laid down in this court that, upon an appeal by the defeated party in an action, the successful party may take advantage of any errors of the court committed against him on the trial, in order to uphold the judgment in his favor, applies only to cases tried by the court without a jury, and these decisions are based upon the statute applicable only to such cases. *Stevens v. Millard,*36 Wis. 77-83; *Maxwell v.*Hartmann, 50 Wis. 660, 664; *Witt v. Trustees,*55 Wis. 377, 382; *Pettigrew v. Evansville,*25 Wis. 233; sec. 3070, R. S. 1878. It will be seen by an examination of this statutory provision that it is wholly inapplicable to a trial by jury in the circuit court. In a case not coming within the provisions of .this statute, exceptions, taken by the respondent in an appeal, who has not settled a bill of exceptions and also appealed, cannot be considered in this court on the" appeal of the other party. *Knox v. Cleveland,*13 Wis. 245, 248; *Lee v. Dunlop,*15 Wis. 387; *Pettigrew v. Evansville,*25 Wis. 223. A possible exception to this rule is suggested by Chief Justice Dixon, in *Hopkins v. Langton,*30 Wis. 379. If the exception there suggested could be sustained, it would not apply to the case at bar. We do not feel called upon to determine whether the learned circuit judge erred or not *288in overruling the objections of the respondent to the evidence offered by the appellant on the trial.

The learned circuit judge having erred in refusing to submit the question of adverse possession by the defendant to the jury and ordering the plaintiff nonsuited, the judgment must be reversed.

*By the*Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.