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
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ence 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
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sons 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.