#### Batz, Appellant, vs. Woerpel, Respondent.

*January 31*—

March *11, 1902.*

*Limitation of actions: Adverse possession: Fences: Evidence:Intention: “Actual occupation and possession:” Inclosure.*

1. Wliere a fence built by defendant’s grantors bas been maintained' for over sixteen years, tbe removal of parts of tbe fence, leaving some of tbe old posts and boards standing, is not'evidence-of an intention to abandon possession of any lands bounded by sucb fence.

2. Sec. 4213, Stats. 1898, provides that when there bas been an-actual continued occupation of any premises under a claim of' title, exclusive of any other right, but not founded on any written instrument, judgment, or decree, the premises so actually occupied, and no other, shall be deemed to be held adversely; and sec. 4214, provides that, for the purpose of constituting adverse possession under the preceding section, land! shall be deemed to have been possessed and occupied only: (1) ,,when protected by a substantial inclosure, (2) when it has-been usually cultivated or improved. *Held,*that the inclosure,, cultivation, and improvement so mentioned in the statute are,. *at*most, evidence of the possession and occupancy required by sec. 4213, and do not exclude actual occupancy and possession-, without such inclosure, cultivation, and improvement.

3. A vendee of the southern portion of a strip of land built a house-which extended about eighteen inches over his north line. Thereafter the vendor set stakes for the vendee to build a fence-on the vendee’s north line, the stakes and fence built according thereto being ten feet north of vendee’s line as described im his deed. Plaintiff purchased the balance of vendor’s land, and the south line as described in plaintiff’s deed would be ten feet south of said fence. The fence stood undisturbed for sixteen years after it was built, when defendant, having succeeded to-the title of the original vendee, removed parts, leaving some of' the old posts standing, two of which remained until the action was tried. The original vendee and his successors in title, including defendant, had used the land, so marked off by said' fence, as a way of ingress and egress to and from the back, door of the house, for more than twenty years. *Held,*that defendant had title to the ten-foot strip south of the fence by adverse possession.

*443Appeal from a judgment of tbe circuit court for Dane-county: R. G. Siebeceee, Circuit Judge.

*Affirmed.*

Tbis action was commenced in justice’s court August 4,. 1900, to recover $25 damages for trespassing upon tbe plaintiff’s land, described, and mutilating a shade tree tbereon, July 10, 1900. Tbe defendant, by way of answer, pleaded title to tbe *locus in quo,*tracing bis title by mesne conveyances from Henry Gilman, wbo owned tbe same May 4, 1870,. and alleged that tbe defendant, bis predecessors and grantors, beld and possessed tbe *locus in quo*for more than twenty years adversely to any other claim, and were in open and notorious possession of the premises where tbe wrongful acts were alleged to have been committed under claim of title in-fee, exclusive of any other right, and denied all other allegations in tbe complaint not therein specifically admitted or otherwise answered.

Tbe cause having been certified to tbe circuit court, and a jury waived, it was there tried; and upon such trial it appeared from tbe undisputed evidence, and was in effect found by tbe court, that May 4, 1870, Henry Gilman was tbe owner in fee simple and in possession of a strip of land on tbe east side of lot 4 in block 12 in the village of Sun Prairie, being twenty rods long north and south, and five rods wide east and west, and bounded on tbe north by Main street, on tbe east by Railroad street, and on tbe south by an alley thirty-three feet in width, and on tbe west by tbe balance of said lot 4; that on that day Henry Gilman and wife conveyed to Sterner & Lampson a piece of land off tbe south end of that strip, extending four rods north of tbe north line of tbe alley, and five rods west of tbe west line of Railroad street, and that Sterner & Lampson immediately took possession and built a dwelling bouse tbereon, which extended a short distance 'north of tbe north line of tbe lot so conveyed to them; that in August, 1870, Sterner & Lampson, being desirous of building a fence on tbe north line of their lot so con-*444Tejed to them, consulted with Henry Gilman, wbo tben owned tbe balance of tbe strip, in respect to tbe same, and, ■after Henry Gilman bad set tbe stakes where sucb fence ■should be built, Sterner & Lampson built tbe fence on tbe line so stakfed out by Henry Gilman, and that,, as a matter ■of fact, tbe line so staked out by Henry Gilman, and tbe fence so constructed thereon, was from eight to ten feet north of tbe north line of tbe lot so conveyed to Sterner & Lampson; that Sterner *&*Lampson went into tbe possession of all tbe lands south of such fence in August, 1810; that November 26, 1870, Lampson sold and conveyed bis undivided ■one-balf of said lot to Sterner, wbo took tbe exclusive possession of said lot and all that part of said strip south of tbe division fence so constructed, with tbe knowledge and consent of Henry Gilman; that September 17, 1873, tbe title and possession of all of said strip south of said fence passed by deed of conveyance and delivery from Henry Sterner and wife to Nicholas Biscb; that May 19, 1879, sucb title and possession of all of said strip .south of said fence passed by deed of conveyance and delivery from Nicholas Biscb to Michael Starker; that October 6, 1885, sucb title and possession of all of said strip south of said fence passed by deed of conveyance and delivery from Michael Starker and wife to tbe defendant herein; that each of sucb deeds and conveyances contained substantially tbe same description as tbe deed from Henry Gilman to Sterner *&*Lampson, and tbe fence during all of those years remained at tbe place and on tbe line so staked out and located by Henry Gilman in 1870; that, by reason of tbe dilapidation of tbe fence, tbe defendant removed tbe same, except tbe posts, in 1886, and two of tbe posts originally set remained at tbe time of tbe trial of this action; that, during all of those years from 1870 until after the defendant went into possession, be and bis grantors used and occupied tbe ground near tbe entrance of tbe bouse at tbe door on tbe north side of tbe bouse for an entrance and *445passageway to tbe bouse; that February 15, 1886, Henry Gilman made a deed of conveyance to tbe plaintiff of tbe balance of said strip of land, tbe same being described therein as five rods wide and sixteen rods long, and bounded as indicated, and wbieb description in fact extended from eight to ten feet south of said fence. Tbe court also found, upon evidence more or less in dispute, that tbe defendant continued in tbe use and occupation of tbe bouse and ground on tbe north side of tbe bouse, being tbe strip in question, and not included in tbe description in tbe recorded deed to tbe defendant and bis grantors, nor in any of tbe deeds to and from bis grantors-back to tbe time of Henry Gilman, which use and occupation was continued by tbe defendant up to about tbe year 1893 that after tbe removal of tbe fence as aforesaid by tbe defendant, and from about 1887 and 1888, tbe tenant and representative of tbe plaintiff used and occupied a small part of the-strip in dispute, not included in tbe deed to tbe defendant, for tbe purpose of passing over tbe same, but that tbe defendant also at tbe same time used tbe said strip, and never gave-up or parted with tbe actual use and possession of tbe same; that some time in tbe summer of 1893 tbe plaintiff, under-claim of being lie owner of said strip, constructed a barb-wire fence upon said disputed strip, not included in said deed to-tbe defendant, which fence was located about eighteen inches-north of tbe bouse of tbe defendant, and about from six to eight feet upon tbe east end south of tbe original fence, the-post of which is still standing near the sidewalk, and which-post is a few inches north and east of tbe center of a certain-elm tree which is upon tbe strip of land, and wholly excluded the defendant from all of tbe strip of land north of tbe barbwire fence; that up to tbe time of tbe construction of tbe barbwire fence there was a strip in tbe neighborhood of four feet north of tbe bouse that bad been used exclusively by tbe defendant and bis grantors as a passage and as a footpath; that July 10, 1900, tbe defendant went upon tbe strip of land and *446■cut off certain limbs of the elm tree, tlie body of wbicb tree is •located south, of tbe original fence, and upon the strip in question; that most of the limbs so cut off by the defendant extended over the strip in question and over the house of the •defendant, and were incumbering the same, and were injuring the roof of the house, and preventing the proper use of the chimney of the same, which limbs so cut off were projecting ■over and upon the strip of land which had been occupied by ■the defendant and his grantors for ingress and egress to and from his house in question; that one limb cut by the defendant was a branch of a broken limb on the south side of the ■tree, and was cut at a place about four feet north of the barbwire fence.

And as conclusions of law the court found, in effect, among •other things, that all the land south of the said line so staked nut and located by Henry Gilman and Sterner & Lampson as the north line of the premises conveyed by Henry Gilman to them has ever since May 15, 1870, been held adversely to the •said Henry Gilman and to all his grantors up to the time of the building of the barb-wire fence by the plaintiff; that the •cutting of said limbs of the elm tree by the defendant was not a trespass on the part of the defendant, but that, on the other hand, the plaintiff, in erecting and maintaining the barb-wire fence south of the original fence, as found, was a trespasser at the time he so erected the fence, and is still a trespasser with respect to maintaining the same; that the defendant was entitled to judgment dismissing this action, together with •costs, — and ordered judgment accordingly. From the judgment so entered, the plaintiff brings this appeal.

For the appellant there were briefs by *Gilbert &*Jaclcson, attorneys, and *Olin &*Butter, of counsel, and oral argument by *F. L. Gilbert*and *H. L. Butter.*

For the respondent there was a brief by Tenney, *Hall &*Tenney, and oral argument by *F. W. Hall.*

*447Cassoday, C. J.

Tbe finding to tte effect that tlie barbwire fence was constructed by the plaintiff in the summer of 1893 is not sustained by the evidence. On the contrary, the plaintiff’s son-in-law, Mr. Ruth, testified to the effect that he assisted in constructing that barb-wire fence in 1891, and that from 1888 to that time his garden came right up to where the barb-wire was then located; that he did not know that there wás any dispute for a long while, but had known it since August, 1900; that there was no fence to hinder the defendant from going in and out of his side door on the north of his house until he put the garden there. The defendant testified to the effect that Mr. Ruth had no garden down in the corner near the house before he built the barb-wire fence in 1891 ; that Mr. Ruth made no use of the strip south of the posts; that some part of it was idle at the time of the trial; that before the barb-wire fence was constructed the defendant’s walk leading to the side door on the north side of his house was not interfered with; that he used sis or seven feet of space before the fence was put there. The defendant’s testimony is corroborated in some respects. Mr. Ruth concedes that when he went upon the premises there were a few posts and boards remaining of the old fence, and that the same were in line with the center of the tree, although he never measured it.

After careful consideration, we are constrained to hold that the disputed facts so found by the trial court are sustained by the evidence, except as to the time of constructing the barbwire fence. That, however, is immaterial, since it appears from the undisputed evidence that the fence was not placed there until more than twenty years after the defendant’s grantors, Sterner & Lampson, constructed the old fence on the line staked out by the plaintiff’s grantor. It appears from such findings and the evidence that from the time of constructing that old fence, in August, 1870, down to the time of constructing the barb-wire fence, in 1891, the defendant *448and bis several grantors were in tbe possession and occupancy of all tbe land sontb of tbe line of that old fence. In fact, sucb possession and occupancy do not appear to bave been disputed until about tbe time of tbe construction of tbe barbwire fence. Sucb possession and occupancy during tbe whole twenty years were, from the very situation of tbe premises and tbe residence of tbe defendant, open, notorious, and continuous. True, that fence became dilapidated to sucb an extent that tbe defendant removed a part of it in 1886, but be-left some of tbe old posts and some boards standing, as an indication of wbat tbe defendant tben regarded tbe north line of bis lot. Sucb removal of a part of tbe old fence was no evidence of an intention to abandon possession of any of tbe land south of that fence, but, rather, indicates that be regarded himself as having some interest in and control over that fence.

Tbe question recurs whether sucb possession and occupancy of all tbe land south of tbe line of that old fence by tbe defendant and bis grantors for twenty years constituted adverse possession, within tbe meaning of tbe statute which declares that “when there has been an actual continued occupation of any premises under a claim of title, exclusive of any other right, but not founded upon any written instrument or any judgment or decree, tbe premises so actually occupied, and no other, shall be deemed to be held adversely.’7 Sec. 4213,, Stats. 1898. Tbe statute further declares that, “for tbe purpose of constituting adverse possession” under that section, “land shall be deemed to bave been possessed and occupied in tbe following cases only: (1) When it has been protected by a substantial inclosure. (2) When it has been usually cultivated or improved.” Sec. 4214, Stats. 1898. Tbe contention is that, after tbe old fence became dilapidated and mostly removed, tbe defendant’s possession and occupancy of tbe land south of tbe line of that fence were not “protected by a substantial inclosure,” within tbe meaning of that statute, nor *449“usually cultivated or improved,” within the meaning of that statute. Such contention would have much force if the defendant relied entirely upon such inclosure or such cultivation or improvement to establish his possession and occupancy. But he does not. On the contrary, he relies upon open, notorious, continuous, use and occupancy during the whole of the twenty years. As indicated, the defendant’s house extended eighteen inches north of the north line of the land described in his deed. His bach door opened upon the north side of his house, and his walh from that door necessarily expended over the land now in dispute in an easterly direction to the' street. Erom the very nature of things, that walh was in continuous use of the occupants of the house during the whole of the twenty years. It was exclusively for the use of persons going to and from the house. The balance of the land now in dispute constituted a part of the defendant’s front door yard. Its northern limit was naturally suggested by the remains of the old fence which had existed for sixteen years. The inclosure, cultivation, and improvement so mentioned in the statute are, at most, evidence of such possession and occupancy. Undoubtedly there can be actual occupancy and possession without such inclosure, cultivation, or improvement. A walh or a driveway is a good illustration. Certainly such open, notorious, and continuous use for twenty years without objection is *prima facie*evidence of adverse possession. *Willems v. Nicolai,*99 Wis. 178; *Wollman v. Ruehle,*100 Wis. 31; *S. C.*104 Wis. 603; *Meyer v. Nope,*101 Wis. 123; *Bishop v. Bleyer,*105 Wis. 330; *Roberts v. Von Briesen,*107 Wis. 486. After twenty years of peaceable and uninterrupted adverse possession, a grant will be presumed. *Nelson v. Ja cobs,*99 Wis. 559. The construction of the two sections of the statute mentioned has recently been considered by this court. *Illinois S. Co. v. Bilot,*109 Wis. 418, 440-447. It is unnecessary to add to the authorities there cited and the *450reasons there given by Mr. Justice Maeshali.. Among other things, it is there said:

> “No particular hind of inclosure is requisite. It may be artificial in part and natural in part. Nor is any particular kind of improvement required, so long as it satisfies what is usual under the circumstances, and indicates clearly the boundaries of the adverse occupancy. . . . The boundaries may be artificial in part and natural in part, if the circumstances are such as to clearly indicate that the inclosure, partly artificial and partly natural, marks the boundaries of the adverse occupancy. . . . The term 'improvement in the usual way,’ as used in the statute, means put to the exclusive use of the occupant, as the true owner might in the usual course of events.' That use may be, as it often is, one that adds nothing to the value of the premises. It may even destroy the natural and actual value, — as, for instance, a highway may be acquired by twenty years’ uninterrupted adverse use. . . . The governing questions of law, regardless of the character of the premises, are the same in every case; but the question of fact may be presented by evidence in such a great variety of ways, according to the circumstances of each particular case, that usually there is room for conflicting inferences, requiring the verdict of a jury as to where the truth lies.”

He then quotes approvingly the language of the supreme court of the United States as follows:

> “To constitute an adverse possession, there need not be a fence, building, or other improvement; and it suffices for the purpose that visible and notorious acts of ownership are exercised over the premises in controversy for the time limited by statute. So much depends upon the nature and situation of the property, the uses to which it can be applied or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule in all cases. But it may safely be said that where acts of ownership have been done upon the land, which from their nature indicate a notorious claim of property in it, and are continued sufficiently long, with the knowledge of an adverse claimant, without interruption or an adverse entry by him, such acts are evidence of an ouster of a former owner, and an actual adverse possession *451against him, provided tbe jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held.”

We must hold that the plaintiff’s claim of title to the *locus in quo*was barred by the statute of limitations before the commencement of this action. This makes it unnecessary to consider the other question discussed by counsel.

*By the Gowrt.*— The judgment of the circuit court is affirmed.