#### Warner vs. Fountain and others.

Real Estate — Notice oe pbiob eights — Estoppel: (1, 2) *Notice to grantee of land, of rights of prior grantee.*(3) *Bstoppel*in pais, *against claim to land.*• (4) *Bights of owner against one who has made improvements in good faith.*

1. Persons who took deeds of land *after*the recording of a deed from their grantor to a railroad company covering in part the same land, are chargeable with notice of the company’s rights; and the existence of a fence erected by it along the track, at the time of the conveyance to such persons, does not estop the company from claiming *beyond*such fence.

2. One who took possession under a land contract from said grantor, *before*the company’s deed was recorded, but after it was made, and when the company was in possession thereunder, is also bound to take notice of its rights.

3. The fact that A. permits B., without objection, to erect a house upon A.’s land, and builds a division fence between the premises claimed and occupied by himself and those so claimed and occupied by B., will not estop him from claiming the latter premises, where both parties were equally ignorant in fact, and equally chargeable with notice, of the true boundary.

4. If A. gets peaceable possession of the land with the house upon it, B. cannot recover the value of such house in an action at law, nor maintain trespass against A. for entering upon the land and removing the house to another part of his own premises.

APPEAL from the Circuit Court for *Outagamie*County.

The action was against *Fountain*and. two other persons, for breaking the plaintiffs close, and taking and carrying away therefrom without "his consent, a dwelling house situated thereon, the property of the plaintiff, and converting the same to their own use, to plaintiff’s damage $400. The premises thus claimed as plaintiff’s close are described in the complaint by the following boundaries: “ commencing in the east line of Appleton street, in the second ward of the city of Appleton, * * * one hundred feet north of the Chicago & Northwestern Railroad *(as it was fenced in*I860 to 1869), and running thence north forty feet; thence east one hundred feet; thence south forty *406feet; and tbence west one hundred feet to tbe place of beginning, being's, part of tbe southwest corner of block seven according to Kimball’s Addition to tbe city of Appleton.” Tbe defense was, in substance, that tbe premises so described, including tbe building removed, belonged to tbe defendant *Fountain.*Tbe other defendants removed said building at bis request.

On tbe 11th of February, 1861, David Kimball, who was then tbe owner, executed a quit-claim deed to tbe Chicago and Northwestern Railway Company, of certain lands, including a tract in tbe northwest quarter of section 26, of a certain specified town in said county; which tract is described, with reference to tbe section lines, and with reference also to tbe central line of tbe track of said company’s road as then located at that place, tbe northerly line being defined as running parallel with tbe central line of said track, and at a distance of *eighty-nine, feet*therefrom. The deed contains these words: “ This conveyance being upon tbe condition that tbe grantees shall erect at their own cost, suitable fences on tbe division line of tbe land hereby conveyed.” This deed was not recorded until January 26, 1866. On tbe 7th of December, 1861, tbe plat of Kimball’s Addition to tbe city of Appleton (bearing date tbe previous day) was duly acknowledged and recorded. Block 7, upon this plat, occupies such a position that the strip of land granted to tbe railroad company by tbe aforesaid deed, extends across tbe southwestern corner of tbe block. In 1861 or 1862, tbe company built a fence along its track across said block 7, parallel with tbe center line of its track, and only *thirty-nine and a half feet*distant therefrom, on tbe northern side of the road. The width of tbe land enclosed by tbe company at this place, was about tbe same as at other points along tbe line of its road through tbe city of Appleton. The fence remained in this position until the fall of 1869, when tbe company asserted its right to tbe rest of tbe strip deeded to it on that side of tbe track, and used tbe same for a side track, etc.

On tbe 13th of September, 1865, David Kimball, by Reeder *407Smith as bis attorney,-entered into a contract with Joseph Thill for the sale to the latter of a piece of land in said block 7, “ commencing in the east line of Appleton street at its intersection with the *north line of the Chicago & Northwestern Railroad,*and running thence north along the east line of Appleton street one hundred feet; thence east one hundred feet; thence south to the *line of said railroad;*and thence *along the line of said railroad.*to the place of beginning.” The defendant *Fountain*afterwards bought Thill’s interest, and took a deed of the prem-isss, described in the same manner, £rom David Kimball and Eeeder Smith, in February, 1867.

On the 15th day of October, 1865, David Kimball, by Eeeder Smith as his attorney, entered into a contract with George E. Daniels, for the sale to the latter of certain land in said block 7, described as follows: “ Commencing at the east line of Appleton street, *one hundred feet north of the Chicago & Northwestern railroad, and at the north line of land sold to Joseph Thill,*and run north forty feet, then east one hundred feet, then south forty feet, then west one hundred feet to the place of beginning.” On the 13th of December, 1866, Daniels assigned this contract to one Olmstead, and on the 18th of the same month a deed of conveyance was executed to Olmstead by David Kimball and wife and Eeeder Smith and wife, which deed was recorded the next day, and describes the premises conveyed in the same language used in said contract, except that the words “ and at the north'line of land sold to Joseph Thill,” are omitted, and the following words are added: “being a tract or portion of land in the southwest corner of block seven in Kimball’s addition to the city of Appleton, according to the recorded plat of the same.” In July, 1869, Olmstead executed to the plaintiff, for value, a deed of the same premises.

Immediately after the execution of the contract with Thill he took possession as under such contract of a piece of land in the south-west corner of said block 7, immediately adjoining *the railroad fence,*with a front of one hundred feet on Appleton street, and *408a depth of one hundred feet; and built a cooper shop upon said tract very near said railroad fence, and almost wholly upon the land conveyed to the railroad company by the terms of the deed to it above mentioned. Daniels also, immediately after the execution of the contract with him, took possession of the strip forty feet in front on Appleton street and one hundred feet in depth, immediately adjoining on the north the tract so occupied by Thill; and he was put in possession by Seeder Smith, as the agent of Kimball, who determined the southwest comer of said lot by measuring one hundred feet northward on Appleton-street from the railroad fence. In the 'fall of 1866, Daniels built, on the lot occupied by him, the house mentioned in the complaint, worth several hundred dollars; and he testifies that Thill knew of his building such house and never made any objection thereto. In the spring of 1867, *Fountain*went into possession of the Thill lot, and Olmstead went into possession of the Daniels lot; and in August of that year *Fountain*built a fence as a line fence between himself and Olmstead, at a distance, measured on Appleton street, of one hundred feet north of *the railroad fence.*The plaintiff testifies that when he purchased of Olmstead in July, 1869, he paid $450 in cash, and that he bought in good faith, not knowing that any other person claimed the land occupied by Olmstead; that the old railroad fence was still standing at that time; that he first heard of the railroad company having trouble about the line of its land in October, 1869, and this was the first intimation he had of any difficulty about the boundaries there; that after he purchased he put a tenant in the building, who held it till sometime in November, when he left without plaintiff’s knowledge; that he (plaintiff) went after the key, and on going *upon*the premises was ordered off by the defendant Fountain, and, not wishing trouble, he left; that he made a partial arrangement with Eeeder Smith for a lot on the opposite side of the street, in order to save litigation, and went to the premises in dispute with men to move his house on to said lot, and *Fountain*refused to let him do *409so; and tbat be (plaintiff) forbade defendant’s moving tbe bouse cr interfering witb tbe premises in any manner. Afterwards Fountain, witb tbe aid of tbe other defendants, removed said bouse to another portion of tbe tract claimed by Mm, and built a fence on tbe north line of said tract, locating it at a distance, measured on Appleton street, of one hundred feet from tbe northerly line of tbe land deeded to tbe railroad company as above described. Tbe company, in tbe meantime, bad taken possession of tbe strip between said line and its former fence, for tbe purpose of constructing a side track, etc.

Several exceptions were taken by tbe plaintiff to tbe rulings of tbe court in respect to evidence. Reeder Smith, as a witness for tbe plaintiff, was asked whether tbe purchasers of tbe lands in said block 7 [Thill, Darnels and others], did not “build and establish their lines consecutively, measuring Mom tbe north line of tbe railroad track *as it was fenced previous*to tbe year 1869 and tbe question was ruled out. Another witness for plaintiff, who testified tbat as a surveyor be bad determined tbe lines of tbe Thill lot and tbe Daniels lot, by measuring on Appleton street from tbe old line of tbe railroad company’s fence, was asked on cross-examination whether be knew where tbe north line of said railroad was at tbe place in controversy ; and also whether be bad compared tbe location of said line as shown upon a certain map exhibited to him, witb tbe description in tbe aforesaid deed from Kimball to tbe company. Objections by tbe plaintiff to these? questions as incompetent and immaterial, were overruled ; and tbe witness answered, in substance, tbat be bad made such comparison, and tbat tbe northerly line of tbe premises described in said deed, was fifty feet north of tbe line of said fence. Tbe plaintiff also objected to tbe introduction in evidence, for defendants, of said deed to tbe railroad company, on tbe ground tbat “ defendant and plaintiff each claimed title to tbe land in dispute under a contract of sale from tbe same person under whom tbe railway company claimed its title; and tbat under said contract defendant went into possession and *410established bis lines without knowledge of this deed to the railway company, and prior to the recording thereof.” The objection was overruled, and said deed read in evidence.

■ The plaintiff asked the following instructions, which were severally refused: 1. That the actual possession, occupancy and enclosure of land is *prima faaie*evidence of title in the occupant, and this presumption cannot be rebutted by proof of the forcible dispossession of such occupant by another. 2. That if defendant *Fountain*had fixed the lines of his lot, and built fences thereon between his and plaintiff’s land, and acquiesced therein for a long period of time, he was estopped from claiming the land or improvements of the plaintiff beyond said line and fences. 3. That if the plaintiff, or those under whom he claimed, had made valuable improvements upon the lands so claimed by him, with the knowledge and acquiescence of the defendant *Fountain*or of any person under whom he claimed, said defendant was estopped from claiming such improvements as his own, even if it afterward appeared that the land on which they were made belonged in fact to him. 4. That if said defendant refused to allow the plaintiff to have his improvements, made under such circumstances, and prevented him, by force or otherwise, from taking the same from the land within a reasonable time, he was liable to plaintiff for their value in an action for their conversion. 5. That a man has no right to take possession of his own property, real or personal, by force or with strong hand or a multitude of people, but only in a peaceable manner. 6. That if a man should so enter into the possession of his own land, it would give him no right to improvements made in good faith by a person claiming title to the premises for a valuable consideration and by deed or contract therefor. 7. That any person aiding or assisting defendant *Fountain*in removing the property of plaintiff from the lot, or in holding the possession thereof as against the plaintiff, was equally liable with said *Fountain*for damages sustained by plaintiff through such removal or interference. 8. That *411the word “ railroad,” as used in the deeds under which the parties claim, must mean that portion of the railroad land fenced and used for railroad purposes at the time of the conveyance, and not any land not then so held and used. 9. That the deed of conveyance to the railway company, although executed in 1861, could have no binding effect upon any conveyance made by the same party, of the same land, previous to the time of its record, to a person who purchased in good faith, without notice, whether the evidence of such purchase was a contract of sale or a deed from the owner of such land.

The court instructed the jury to find for the defendants. Verdict accordingly; new trial denied ; and plaintiff appealed from a judgment on the verdict.

*Warner & Ryan,*for appellant,

contended, 1. That the land in question being a part of the plat of block 7, in Kimball’s Addition, no record of any deed describing land situated in said plat by government survey is any notice to subsequent purchasers in good faith, unless the description is so plain that any one can understand it without making a survey of the land. R. S., ch. 47; Laws of 1860, ch. 332 ; *Weisbrod vs. R. R. Co.,*20 Wis., 419. 2. That Thill and *Fountain*having purchased in good faith, entered into possession, and made valuable improvements on the land with the knowledge of the railway company, said company is estopped from claiming any land beyond the line of the fence erected by it as the boundary of its land in 1861 or 1862 *(Adams v. Rockwell,*16 Wend., 285; *Dibble v. Rogers,*13 id., 536; *Rockwell v. Adams,*6 id., 467; *Jackson v. Ogden,*7 Johns., 238; *Jackson v. Murray,*7 id., 5; *Jackson v. Ogden,*4 id., 140; *Wendell v. Van Rensselaer,*1 Johns Ch., 343; *Laverty v. Moore,*32 Barb., 347,. and 33 N. Y., 658; 30 N. Y., 226 ; 44 Barb., 218; 3 Hill, 215; 9 Wend., 65; 2 Washb. R. P., 2d. ed., 456, 458); and that this rule applies with equal force as between the plaintiff and *Fountain.*3. That the deed to the railroad company, not having been recorded until after tbe sale to Thill, who purchased in good faith, was not notice *412to bim or any one claiming under Mm, nor to persons wbo purchased subsequently and bounded *their*land by bis purchase. *Fly v.*Wilcox, 20 Wis., 523 ; *Fallass v.*Pierce, in this court, not reported (see 30 Wis.); E. S., ch. 86, §§ 25, 34, 35. 4. That the word “ railroad,” as used in the deeds under which the parties claim, must mean the land then fenced and used for railroad purposes. 5. That even if the land on which the house stood should be held to belong to Fountain, yet the defendants, having seized plaintiff’s house by force, removed it from said premises, and appropriated it to their own use, were liable to plaintiff for its value. E. S., ch. 151, sec. 1, and ch. 141, sec. 30.

*Sudd &*Wigman, for respondents,

as to the construction and effect of the deeds to Olmstead and Fountain, cited *Cleveland v.*Hlagg, 4 Cush., 76; 9 Met., 150; 1 Mich., 421; 2 Md. Oh., 381; 27 Barb., 196; 2 Washb. E. P. (2d. ed.), 630, and authorities cited in notes 1 to 4.

The following opinion was filed at the January term, 1871:

Oole, J.

We are unable to see any error in this record which could possibly have prejudiced the plaintiff. The decisive fact in the case is, that the deed to the railroad company was upon record before any purchaser of the various lots received Ms deed from Kimball. True, Thill, under whom the defendant *Fountain*claims, received his contract and went into the actual possession of his lot in September, 1865. And, although the railroad company had not then put its deed upon record, yet it was in possession of the premises conveyed by Kimball in 1861, and Thill was undoubtedly chargeable with notice of the rights of the company; and when Olmstead received his deed in December, 1867, the railroad deed was upon record, and his lot was described as bounded by a line “ commencing on the east line of Appleton street and *one hundred feet north of the Chicago and Northwestern railroad,"*etc. Thus, in the description of his lot, there was direct refer*413ence to tbe lot owned bj tbe railroad company, and be was bound to know where tbe north line of tbe company’s lot was. It is said that when Tbill went into possession, be fenced bis lot, bounding it on tbe south by a fence which bad been made by tbe railroad company. Suppose be did, it probably would not be claimed that at tbe time of tbe execution of bis contract in September, 1865, be bad no notice of tbe prior unregistered deed of tbe railroad company. He was bound, therefore, to ascertain where tbe north line of tbe railroad lot was, and whether this fence was on tbe line. And certainly all subsequent purchasers, who bought after tbe railroad deed was upon record, were bound at their peril to find out where tbe north line of tbe railroad premises was. If they chose to act on tbe assumption that tbe old railroad fence was on tbe north line of its lot, they could do so; but this would not conclude tbe company, or in any way affect its rights. There is no question of adverse user in the case. But the simple question is, Was the railroad company estopped from claiming to its real boundary line on tbe north, notwithstanding this fence ? And upon that point it seems to us there is hardly room for argument. Eor it would be a very unsafe doctrine to establish, that a person, by neglecting to fence all the land he owns, forfeits the title to the unenclosed portion. These parties doubtless all supposed the old railroad fence was on the north line of its lot. In this they were simply mistaken, and they must abide the consequences of this mistake. The railroad deed, as we have said, was upon record, and all persons who had any interest in the matter could readily ascertain what land had been conveyed to the railroad company. This probably would have involved the necessity for a survey, because, when the railroad deed was executed, Kim-ball had not made his addition to the city of Appleton, and tbe land in that deed could not be described by lots and blocks. But there surely was no difficulty in ascertaining the land conveyed to the company, and the north line of its lot. And, under the circumstances of this case, there is no doubt that third per*414sons were chargeable with constructive notice where it was. This being so, it decides this case, and a consideration of other questions becomes immaterial.

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

The appellant having moved for a rehearing, the following opinion was filed at the June term, 1871:

Cole, J.

On the motion for a rehearing, it is insisted that the plaintiff was entitled to recover the value of the dwelling house. The action was for a trespass *quare*clausum, and to recover the value of this dwelling house removed from the close of the plaintiff. It is very apparent, however, as above stated, that the plaintiff did not own the land upon which the dwelling was erected, although it is doubtless true that Daniels, under whom the plaintiff claims, erected this building under a mistake as to the proper boundaries of his lot. But neither the defendant nor his grantors were in any wise responsible for this mistake as to the true lines. ' They were all in error in assuming that the old fence built by the railroad company was on the north line of its lot. The defendant did nothing to mislead the plaintiff, nor any one through whom he claims. True, Thill knew that Daniels was erecting this house. But he was as ignorant as was Daniels himself as to the true boundaries. But the railroad deed was upon record at this time, and both were equally chargeable with notice of the property conveyed to it. They had equal means of ascertaining where the lines of their respective lots were. And when Thill saw Daniels building this house, he had no actual knowledge that it was upon his land. He therefore gave no notice of his claim to the land, because he did not know that he owned it. This being so, upon what principle can the plaintiff recover for the value of the house ? Possibly if the defendant had brought an action to recover possession of the lot upon which the house stood, the plaintiff might have recovered its value under our betterment law, R. S., ch. 141, secs. 80 *etseq.*Or if for any reason the *415defendant bad invoked tbe aid of a court of equity in support of bis rights, possibly be would bave been compelled to pay for tbe improvements made by tbe plaintiff or bis grantors upon tbe land. Tbe evidence shows that tbe defendant was in tbe peaceable possession of tbe lot upon which tbe bouse stood, and when tbe plaintiff went there last November to forbid him from moving tbe bouse, tbe defendant ordered him off tbe lot. So tbe defendant obtained possession of tbe lot in some way peaceably,' and without resort to legal proceedings of any kind. And tbe plaintiff now seeks in this action a judgment for tbe value of tbe dwelling bouse. We do not see bow be can bave such a judgment, without introducing a new principle into tbe law of this state. In *Putnam v.*Ritchie, 6 Paige, 390, Chancellor Walworth says that be was unable to find any case, either in this country or in England, wherein a court of equity even bad assumed jurisdiction to give relief to a complainant. who bad made improvements upon land, the legal title to which was in tbe defendant, where there was neither fraud nor acquiescence on tbe part of tbe latter after be bad knowledge of bis legal rights. And if a court of equity would not go to tbe extent of decreeing compensation for tbe bouse upon tbe facts, bad tbe plaintiff invoked its aid, it is difficult to perceive upon what principle a court of law could give him a judgment for its value in this action. All tbe parties seem to bave acted under tbe mistaken belief that tbe old railroad fence was on the north line of its lot, although tbe means of information as to tbe extent of that lot were within their reach and equally accessible. We think tbe motion for a rehearing must therefore be denied.

*By the Court.*— Motion denied.