ÆäÀÌÁö À̹ÌÁö
PDF
ePub

United States generally, where such easements must be created by express grant.

Owners of land are also entitled to subjacent and lateral support, but such support must only be given to the land as it is in its natural condition. Thus, where one builds a house and the adjoining owner excavates so as to cause the ground and house to fall, the latter would only be liable for the damage caused by the falling of the ground if in its natural state such falling would take place. The same would be true where one erects a house over a mine, although there is some division of authority on the latter point.

There may also be an easement in party walls. In such cases each owner has title to his half of the wall, and may do with same as he pleases, provided he does not interfere with the support due his neighbor.

Another quite common form of easement is the right to flow the land of another. This may be either the right to allow the natural stream to pass over the land of another, or to flow the land of another for milling purposes. The water in a stream may be used by all the persons through whose land it flows, so long as such use does not interfere with a reasonable use by owners below. What is a reasonable use by an owner above will depend on the circumstances of each case. The course of a stream may be changed on one's own land so long as it is returned to the natural channel before it reaches the adjoining owner. The owner above has no right to pollute the stream or materially diminish the volume of the flow to the damage of the owner below. The question of building dams on non-navigable rivers in this state is governed by statutes. If lands are over-flowed, the injured party may obtain compensation therefor, but such damages are limited to those which have accrued within three years of the bringing of the action. The height to which water may be raised and for what period is regulated by the verdict of a jury. A prescriptive right to flow the lands of another for milling purposes is gained in ten years.

Surface drainage.-Wisconsin has adopted the common law doctrine on this subject, which is that "there exists no such natural easement or servitude in favor of the owner of the superior or higher ground or fields as to mere surface water, or such as falls or accumulates by rain or the melting of snow; and that the proprietor of the inferior or lower

tenement or estate may, if he choose, lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may turn the same back upon or off onto or over to lands of other proprietors, without liability for injuries ensuing from such obstruction or diversion." But a person cannot divert or cause to flow upon the land of another to his injury surface water falling or accumulating on his own land. The extent to which a proprietor may go in turning the surface water off his own land onto the land of another must in each case be determined by the character of the injury which it will produce. A person has a right to drain his land into an established water-course or stream, but a mere hollow or ravine through which flows mere surface water from rain or melting snow, and at other times destitute of water, is not such a stream or water-course.

How easements are lost.--When the dominant and servient estate are united under the same title in the same person there is a merger and the easement is extinguished. One cannot have an easement in his own land. The owner of the dominant estate may also release the easement by deed to the owner of the servient estate. An easement may be lost by abandonment. Whether there has been an abandonment depends on the circumstances of each particular case. Non-user is evidence of an abandonment. Abandonment is usually coupled with adverse possession, and the person holding adversely gains title in this way. An easement may also cease on account of a total change of conditions, as where there was an easement to run water over the lands of another to supply water for a canal, such easement ceased with the abandonment of the canal. An easement may also be lost where the owner of the dominant estate has so enlarged or changed the same that it cannot be restored to its original condition.

SECTION IV.

DEEDS AND CONVEYANCES.

Defined.-In its widest sense, a deed is a written instrument under seal, but in the law of conveyancing, it may be said to be a sealed written instrument whereby a party, who signed the same, makes some disposition of real estate to take effect during his lifetime. Our statute prescribes how conveyances of real estate shall be made and reads as follows: 'Con

veyances of land or of any estate or interest therein may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney and acknowledged or proved as directed in this chapter, without any other act or ceremony whatever; but no mortgage or other alienation by a married man of his homestead exempt by law from execution, shall be valid or of any effect as to such homestead without the signature of his wife to the same."

"All conveyances executed within this state of lands or any interest in lands therein shall be executed in the presence of two witnesses, who shall subscribe their names to the same as such. And when such conveyances are of lands or any interest therein owned by a corporation organized under any law of this state, they shall be signed by the president or other authorized officers of the corporation, sealed with the corporate seal, if any. . . . . and countersigned by the secretary or clerk thereof; and all corporate conveyances so executed prior to the taking effect of these statutes shall be valid. The person executing any such conveyance may acknowledge the execution thereof before any judge or clerk of a court of record, court commissioner, county clerk, register of deeds, notary public, justice of the peace, police justice or United States court commissioner residing within this state who shall file with the clerk of the circuit court of the county in which he resides his certificate of appointment as such commissioner or a copy thereof certified by the clerk of the court which appointed him. The officer taking such acknowledgment shall indorse thereon a certificate of the acknowledgment thereof and the true date of making the same under his hand."

Requisites of a deed.-The requisites of a deed entitled to record in this state are: (1) a writing, (2) signed and sealed by the person from whom the estate or interest is intended to pass, (3) competent parties, (4) a consideration, (5) an interest or estate to be conveyed, (6) attestation, (7) acknowledgment, (8) delivery and acceptance, (9) and usually there is a recording of the same. These will be considered in the order named.

The writing.-No set form is required in order to constitute a writing a deed conveying real estate, but it is dangerous to depart from established forms and phrases, for, although they may seem cumbersome and verbose, their exact mean

ing is known, having been fully interpreted by the courts. A deed is usually written on paper or parchment and some authorities maintain that a deed written on any other substance would be invalid. A deed should be plainly written in ink, although if written in pencil it would be perfectly valid. Alterations and interlineations and erasures should be avoided in a deed, and if necessary, a note to the effect that same were made before delivery should be inserted in the deed above the attestation clause. Regarding alterations and interlineations our court in a recent case said: "The mere fact of an alteration or interlineation in an instrument would not call for explanation, if the appearance of the writing and the ink are such as to indicate that the whole was written at the same time and by the same hand. But if the circumstances are such as to point to a change or alteration in a different hand or in different ink, and that it must have been done after delivery, the rule is cogent that before it can be received in evidence such alteration must be explained." A material alteration of a deed by a grantee or those acting under his direction without the assent of the grantor, destroys the covenants in the deed and they cannot be enforced by any person privy to the alteration. It does not, however, divest or destroy any estate which may have been vested in the grantee at the date of its delivery.

Nothing will be said about the form of the ordinary deed, the same appearing sufficiently from the forms in the back part of this book. There is also a statutory form of both warranty and quit-claim deed, (See Forms) but they are not in common use, and as to these our statutes provide: "Such deeds, when executed and acknowledged as required by law, shall, when of the first of the above forms (that is, a warranty deed,) have the effect of a conveyance in fee simple to the grantee, his heirs and assigns of the premises therein named together with all the appurtenances, rights and privileges thereto belonging, with a convenant from the grantor, his heirs and personal representatives that he is lawfully seized of the premises; has a good title to convey the same; that he guaranties the grantee, his heirs and assigns in the quiet possession thereof; that the same are free from all incumbrance and that the grantor, his heirs and personal representatives will forever warrant and defend the title and possession thereof, in the grantee, his heirs and assigns

against all lawful claims whatsoever; any exceptions to such covenants many be briefly inserted in such deed, following the description of the land; and when in the second of the above forms (that is, a quit-claim deed), shall have the effect of a conveyance in fee simple to the grantee, his heirs and assigns of all right, title, interest and estate of the grantor, either in possession or expectancy, in and to the premises therein described and all rights, privileges and appurtenances thereto belonging."

His

Mark

Signed and sealed.-The deed should be signed and sealed by the grantor. If he cannot write, he may sign by mark, which is usally done, thus, John Doe, but such a signature is only allowed when a person cannot write his name. If the deed is made by a corporation organized under the laws of this state, it should be signed by the president or other authorized officer of the corporation, sealed with the corporate seal, if any, counter-signed by the secretary or clerk. A deed signed by the president alone would be void. A guardian should sign, "AB, as guardian of CD, infant." An executor should sign "AB, as executor of the last will and testament of CD, deceased."

A seal is necessary to the validity of a deed in Wisconsin. If a writing is executed purporting to convey land and no seal is affixed thereto, equity will treat this as a contract to convey. If the instrument purports to be sealed by all parties, and one or more of them do not affix their seal, they will be presumed to have adopted the seal or seals of the other signers. The seal in a deed imports consideration. As to what constitutes a seal in this state, see "Specialty" in the chapter on Contracts.

Competent parties.-There must be proper parties to every deed--grantor and grantee--and these must be named in the deed.

The grantor must be a person capable of entering into a contract and it may be generally said that a person capable of entering into a contract may execute a deed conveying land. (See Contracts.) If made by a person of unsound mind or an infant, a deed is voidable and not void, although most authorities hold that a deed made by a person under guardianship is absolutely void. A deed made by a person non compos mentis will be set aside upon application to the proper court. However, in such cases return of the remain

« ÀÌÀü°è¼Ó »