Argued April 11, 1968. —
Decided May 7, 1968.
APPEAL from a judgment of the county court of Door county: EDWARD G. MINOR, Judge. Reversed.
For the appellants there was a brief by Kaftan, Kaftan Kaftan of Green Bay, and oral argument by Arthur Kaftan.
For the respondents there was a brief by Welsh, Trowbridge, Bills, Planert Gould of Green Bay, and oral argument by Richard J. Gould.
The complaint in this action alleges that the Beduhns "have been owners and holders in fee simple of title to the following described premises located in Door county, Wisconsin:
"Commencing at the Southwest corner of Government Lot 3 in Section 33, Township 29 North of Range 27 East, thence East on the South boundary line of Government Lot 3, 1320 feet, thence North 1° 30' East a distance of 49.5 feet to the South line of a private road thence South 88° 30' East and parallel with the South line of Government Lot 3 a distance of 875.5 feet to the concrete marker on the North line of the Kline tract as described in Volume 93 of Deeds, page 257, Door County Records, thence North 13° 16' West a distance of 94.8 feet, thence North 21° 25' West a distance of 50 feet to the point of beginning of the tract to be described and being the southwest corner of such tract, thence northwesterly along the east boundary line of the private road 107 feet, thence North 50° 56' East to the shore of Clark's Lake, thence southeasterly along the Shore of Clark's Lake to the point at which a line bearing North 50° 56' East from the point of beginning intersects the shore of Clark's Lake; thence South 50° 56' West to the point of beginning."
The complaint goes on to allege that the Beduhns are entitled to possession of the described property and that the defendants-respondents, John and Elsie Kolar, have unlawfully withheld possession and have injured the property to plaintiffs' damage. The complaint prays for possession of the described premises and $1,000 damages.
The Kolars' answer denies the material allegations of the complaint. The Kolars moved for summary judgment supported by an affidavit of John Kolar. In that affidavit it is averred that the defendants, by virtue of various recorded warranty deeds, are owners of the following described premises:
"A tract of land situated in Lot Three (3), Section Thirty-three (33), Township Twenty-nine (29) North, Range Twenty-seven (27) East being Three (3) rods wide and Thirteen (13) rods long and commencing on the shore of Clark's Lake at the Southeast corner of the tract in said lot owned by John Feuerstein, then South along the shore of Clark's Lake Three (3) rods, thence West parallel with the South line of John Feuerstein land 13 rods; thence North at right angles 3 rods more or less to the South line of said John Feuerstein's tract and thence East on the South line of said John Feuerstein's tract to the place of beginning, being same tract deeded by Herman Woldt and wife and Otto Dorn to Erick Swenson which deed is recorded in Vol. 30 of Deeds, page 72 in the Register of Deeds office in Door County, Wisconsin, and the right of way and privilege to travel over and across the land owned by Woldt and Dorn in said Lot 3, Section Thirty-three (33), Township Twenty-nine (29) N., Range Twenty-seven (27) East."
An affidavit in opposition to defendants' motion was interposed by William Beduhn. This affidavit reveals that the litigants are neighboring property owners in the area of Clark's Lake, Door county, and that plaintiffs claim ownership to the premises described in the complaint by virtue of a 1957 deed from one Alfred Leiser. The legal description of the property conveyed by the Leiser deed is as follows:
"A tract of land in Lot Three (3) Section Thirty-three (33) Township Twenty-nine (29) N., Range Twenty-seven (27) East, described as follows:
"Beginning at a point on the shore of Clark's Lake at the Southeast corner of a tract of land described in 46 of Deeds, page 500; thence Southerly along the shore of Clark's Lake to the Northeast corner of the tract of land described in 59 of Deeds, page 88; thence Westerly along the Northerly boundary of the tract of land described in 59 of Deeds, page 88 and said line extended to the private road running northerly and southerly through said Government Lot Three (3), thence Northerly along the Easterly boundary of said road to a point where the Southerly boundary of the tract of land described in 46 of Deeds page 500 extended Westerly would intersect said point; thence Easterly along the Southerly boundary and the Southerly boundary extended of the tract of land described in 46 of Deeds, page 500, to the shore of Clark's Lake, including riparian rights, it being the intention to convey all of the land owned by grantor in said Government Lot Three (3) lying between the land described in 46 of Deeds, page 500 and the tract of land described in 59 of Deeds, page 88 and extending Westerly from the shore of Clark's Lake to the road running Northerly and Southerly through said Government Lot Three (3)."
The affidavit further avers that the plaintiffs and their predecessors in title have always paid the taxes on the property and have "occupied and possessed" the described premises for over twenty years.
In opposition to the motion for summary judgment, a second affidavit was filed by Daniel Gaffney, a surveyor. This affidavit alleges that the lawns, tree lines and fences of the properties in the area run at right angles to the lakeshore and that in his opinion "there is no substantial evidence to support property lines" in the manner described in the defendants' affidavit.
The trial court granted the motion for summary judgment saying:
"The plaintiffs in an affidavit signed by William C. Beduhn claim ownership by virtue of a deed dated April 16, 1957 which was recorded in 113 of Deeds, page 412, Door County Records. However, an examination of the description in the deed shows on its face that the land described therein is not the same land described in the complaint."
The court further stated that the plaintiffs do not allege that they acquired title to the property described by either purchase or adverse possession and consequently ". . . there is no showing that the plaintiffs are the owners of the real estate described in the complaint and therefore not being the owners, they cannot maintain an action in ejectment against the defendants."
From a judgment entered for the defendants, plaintiffs appeal.
This controversy should be tried. There are issues of fact to be resolved and we must therefore conclude that summary judgment was improperly granted.
Ejectment is a legal action. Drafted in compliance with sec. 275.05, Stats., plaintiffs' complaint describes a parcel of property located on Clark's Lake to which they allege they are entitled to possession to the exclusion of defendants. Defendants come forward with an affidavit describing their property and the trial court concluded that this description alone, taken from public records, presented a prima facie defense to any claim of record title by plaintiffs.
This conclusion required the court to find not only good title in the defendants but an absence of title in the plaintiffs. At this stage of the proceedings we conclude that the trial court erred on both counts.
In ejectment the plaintiff must rely on the strength of his own title, not on the weakness of the defendant's. Slauson v. Goodrich Transportation Co. (1898), 99 Wis. 20, 23, 74 N.W. 574.
The trial court erred in finding that the description of plaintiffs' property in the complaint and in the Leiser deed are not the same. This is not necessarily true. The description in the Leiser deed shows that the dimensions of plaintiffs' property are dependent on the placement of the following eight unknowns, none of which is part of the record:
(1) The southeast corner of the tract of land described in 46 Deeds 500.
(2) The northeast corner of the tract of land described in 59 Deeds 88 (also the basic deed underlying defendants' claim of title).
(3) The distance along the shore of Clark's Lake between the points mentioned in (1) and (2).
(4) The northerly boundary of the tract described in 59 Deeds 88.
(5) The placement of the private road which runs through government lot three.
(6) Placement of the easterly boundary of the road.
(7) The point where the southerly boundary of the tract described in 46 Deeds 500 would, if extended, intersect with the road.
(8) Southerly boundary of the property described in 46 Deeds 500.
Presumably the four corners of the plaintiffs' parcel are (1), (2), (5), and (7), and are one and the same as the four corners of the property described in the complaint. At this point we are not able to agree that they are different. The establishment of the proper boundaries on plaintiffs' property is a question of fact that should be resolved by a trial.
The trial court also erred in determining that there was no issue of fact as to the description of defendants' property. The defendants' deed (1946) supporting the Kolar affidavit identifies a piece of property running east and west and commencing on the shore of Clark's Lake. Plaintiffs contend that such parcel runs northeasterly and southwesterly along their property and not due east and west. Plaintiffs assert that the parties and their predecessors in title have always given a practical construction to the defendants' deed or deeds to the effect that the lines are not due east and west but northeasterly and southwesterly and that the northeasterly corner of the Kolar land commences at the lakeshore.
A question of fact is presented about the location of defendants' property lines which should be resolved by trial and not on summary judgment.
A further question is presented on plaintiffs' claim that if they are not entitled to ejectment because they have no record title they nevertheless are entitled to such relief because they had achieved good title by adverse possession.
In ejectment one can claim legal title on this theory. Plaintiffs need not plead adverse possession, only that they are "entitled to possession and that the defendant unlawfully withholds possession" from them. This plaintiffs have done. On remand, plaintiffs and defendants should be permitted to put in their respective proofs on this alternative theory by which plaintiffs claim ownership.
Stephenson v. Wilson (1880), 50 Wis. 95, 6 N.W. 240; Hacker v. Horlemus (1889), 74 Wis. 21, 41 N.W. 965; Larzelere v. Wood (1908), 136 Wis. 541, 117 N.W. 1013.
Sec. 275.05, Stats.
By the Court. — Judgment reversed and cause remanded for further proceedings consistent with this opinion.