Meyers v. Wisconsin Central Railway Co.
Meyers v. Wisconsin Central Railway Co.
Opinion of the Court
It is a familiar principle in the law of ejectment that a plaintiff must recover, if he recover at all, by virtue of the strength of his own title and not by virtue of the weakness of the defendant’s title. Therefore the first inquiry logically is whether the plaintiffs have shown title to the disputed parcels. This question involves primarily the construction of the deeds from Boter under which the plaint
The village of Abbotsford originally came into existence by reason of the building of the defendant’s railroad and the ■ establishment of a railroad station. The original grant of a right of' way in 1819 was but seventy-five feet in width on each side of the center line. When Mr. Abbot, who was the land commissioner of the railway company at the time, platted the village in 1880, he seemed to consider that the right of way on the east side of the center line was 150 feet in width— at least it is so indicated on his plat. In 1883 the railway company caused a large map of its right of way and grounds ■ in Abbotsford to be made, upon which the right of way on the ■east side of the center line was represented as 150 feet in width. This claim does not affect plaintiffs, as they were not informed of it, but it throws some light upon the subsequent acts of the railroad company. When Maguire received his deeds in 1882 and 1883 there were apparently no fences nor any clearly defined lines of occupation. He built his store largely upon the southerly “disputed parcel” and within the • 150-foot line, but this was burned down in 1885. When Roter rebuilt in 1886 he changed the location of the store to the east, and built entirely upon the parcel marked “Meyers & Chase,” except that a very small part of the southwest corner extended a foot and a half over the line. Roter testifies that he was told that the line was where the new store was built, and even then he got a few inches further west than he intended. He also testifies that he had an icehouse just north of his new store and on the 150-foot line and a woodshed still further north, and that in 1892 he built a board fence nearly on the 150-foot line between the two buildings, and that he continued the fence around the north and east sides of his premises, thus practically inclosing the two parcels marked “Young” and “Meyers & Chase” on the map, and that he placed the fence upon the 150-foot line because he
Prior to the building of the new freight house a number of side tracks had been constructed on the east side of the main track, running north from the freight house for several blocks, and one of these side tracks was for a long distance wholly on the east seventy-five feet of the 150-foot strip. Along the east side of this track and on the east seventy-five feet, opposite block. E on the map, a number of warehouses were built by permission or under leases from the company during the years immediately following the building of the freight house. There is some testimony that the railroad company piled ties and telegraph poles at times on the disputed parcels, but this
In view of the facts thus appearing relating to the condition and use of the disputed parcels of land at the time of and long prior to the time of the execution of the plaintiffs’ deeds, there seems no doubt that the whole 150-foot strip was then occupied by the defendant as a part of its right of way, and consequently that the plaintiffs’ deeds do not include and were not intended to include any portion of such strip.
In this connection the allegations of the complaints in both actions are very significant and well-nigh controlling. These complaints were verified October 10, 1903, and they both allege that the defendant has unlawfully withheld possession of the premises in dispute for the past five years and more. This allegation takes the possession of the railroad company back to October, 1898, almost to the time of the execution of Roter’s deed to Chase and prior to the execution of Roter’s deed to Young. There is no claim that the situation as to possession was in any respect different in September, 1897, from what it was in October, 1898.
Our conclusions are that the evidence shows without serious question that the parcels in dispute were within the defendant’s right of way as located and operated at the time the plaintiffs’ deeds were made, and hence that the plaintiffs were not entitled to judgment.
By the Court. — Judgment in both cases reversed, and actions remanded with directions to render judgment in each case for the defendant dismissing the complaint.
Reference
- Full Case Name
- Meyers and another v. Wisconsin Central Railway Company, Appellant Young v. Wisconsin Central Railway Company
- Status
- to the south line of the section