Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1891-05-07

years, Will the Iull kIlOWlSQgS OF
those claiming adverse interests in
said island and westerly shore, and
against the interests of such claim
ants or owners, under a claim Of
right so to do, and not otherwise"
This, it appears to us, states, with
sufficient clearness, the fact that
the plaintiff relied upon title by
prescription, though it is true that
this is not its whole claim. But it
is enough to give the defendant
notice that adverse possession for
20 years would be relied on, and
the defendant was doubtless as
fully prepared as she ever would
be to meet that issue.
Among other things, the court
below found, in substance, upon
the evidence, that the dam had
been built, kept up and maintained
continuously, by the various own
ers for more than 20 years, and
that the land was flooded and
the water diverted to the east
channel, with a full knowledge of
those claiming adverse interests to
the westerly shore and island, and
against the interests Of such own
ers, under a claim Of right so to
do. That there is abundant testi-
mony to support this finding can
not well be denied. It is said that
there is no evidence that the entry
was hostile or adverse, so as to
set the statute running as against
the real owner. We cannot adopt
that view Of the testimony. Here
the dam, as built and kept up,
abutted on the island. There was
a physical intrusion upon, and an
actual occupation of, the premises
by a visible, tangible structure,
which gave notice to all the world
Of the use to which it was to be
put. The acts of possession were
as open, visible and notorious as
they possibly could be. The
character Of the possession was
likewise, from its very nature, ex-
elusive, and necessarily implied an
custer of the true owner, under a
claim Of right That the occu-
pancy was under a claim Of title is
clearly and conclusively establish
ed by every fact and circumstance
in the case. It is quite immaterial
upon what the claim Of title was
founded, or whether it was valid in
law Or not. 1t certainly was as
serted on all occasions, and the
dam was used as the property Of
the occupant. The intent to hold
adversely could not, in any case,
be shown more clearly than from
the acts and declarations in this,
which we're harmonious and con-
sistent. It may be laid down as
an indisputablc general rule Of law
that, to constitute an effectual adj
verse possession, two things must
concur: (I) an custer Of the real
owner, followed by an actual pos
session by the adverse claimant;
and ~ an intention on the part of
the latter to SO GUST the owner,
and possess for himself the prop
erty. Sedgw. & w. TT, Title
Land, S 720. That grant will
be presumed, by analogy to the
statute Of limitations, after twenty
years peaceable and uninterrupted
adverse enjoyment, is too we'll set
tied" says Chief Justice Dixon, ito
admit of controversy" Rocker v.
Perkins, IA Wis. 81. This posses
sion, by itself, for the statutory
period, raises the presumption that
the party in possession is the actu-
al owner, or that such owner sur
rendered or abandoned his claim
to the premises, or he would have
asserted it within the requisite
period, 10 save his rights. An I'M
disturbed possession Of 20 years is
evidence of an estate in fee, if no
other title appear, and, upon such
evidence, plaintiff may recover in
ejectment. Says Lord Mansfield,
in Dem V. Barnard, Cowp, sos, if
no othct title appears, clear pos
session of 20 years is evidence of a
fee, and not that plaintiff held un-
der lease. See, also, Jackson V.
Wheat, IS Johns. Al; Tanning V.
Wilcox, 5 Day, 258; Arbuckle
V. Ward, % Vt. A; Watkins V.
Peck, IS n, H. 800. We do not
well see how adverse possessions
Of real property could be more
clearly shown in any case than it
was in this. It was certainly an
actual and continuous occupation,
under claim of title, exclusive Of
any other right, if acts and Ian
guage mean anything. The proof
shows that the use was adverse
and uninterrupted, and known to
the owners of the river, and island.
and the lots on the west shore, or
should have been known to them,
and was, under a claim Of title,
exclusive Of any other right, fully
amounting to adverse possession"
as defined by section 42I3 Rev.