Idaho Land Co. v. Parsons , 3 Idaho 450 ( 1892 )

SULLIVAN, C. J.

This is an action in ejectment, brought by the appellant, to recover the possession of one and eleven-sixteenths acres of land, claimed to be a part of the south half of the northwest quarter of section 3, township 3 south, range 35 east, Boise meridian, and for damages. The defense interposed was a denial of appellant’s ownership and right of possession, and a claim of ownership by the respondent. The ease was tried by the court, without a jury, and a judgment entered in favor of the respondent. A motion for a new trial was made by appellant, and overruled by the court. This appeal is from said judgment and order overruling the motion for a new trial.

The appellant specifies seven errors claimed to have been made by the court below. In our view of the case, it is not necessary for us to consider each specification of error separately, and we will therefore consider them together.

The real question for our determination is the sufficiency of the evidence to justify the findings of the court. On or about the fifteenth day of April, 1883, the respondent was in the actual occupation and possession of lots 3 and 4 of section 3, township 2 south, range 35 east, Boise meridian, and thereafter procured title thereto from the government of the United States. The facts, as shown by the record, are substantially as follows: On or about the fifteenth day of April, 1883, one Minnie J. Danilson, the grantor and predecessor in interest of appellant, was the owner of, and in the actual possession of, the south half of the northwest quarter of section 3, township 3 south, range 35 east, Boise meridian; that on the date last above mentioned the respondent desired to erect a fence on the line between said lots 3 and 4 and said south half of northwest quarter of section 3. It was not known to the owners of either tract where said line was. The respondent proposed to T. J. Danilson, the husband and agent of Minnie J. Danilson, that they run the boundary line between said tracts, and offered to employ a surveyor for that purpose. Danilson replied that he was a surveyor, and that he would run the line. To this proposition the respondent assented, and the said Danilson took his instrument, and the respondent and one Billion carried the chain, and the line was surveyed. After the survey was made, Danilson said to respondent: “That is the line; You can build your fence on it." The respondent thereupon erected a fence on said line, by and with the consent of the said Minnie J. Danilson, and has been in the actual occupation and possession of the land in dispute, and claimed to be the owner thereof, without objection or protest from appellant or its grantor, since April 15, 1883, up to December 22, 1891, the date of the commencement of this suit. The record shows that said Minnie J. Danilson conveyed said south half of northwest quarter of section 3 to appellant on August 30, 1888. The contention of appellant is that the evidence shows that the appellant’s grantor and respondent undertook to find or ascertain the true boundary line between said tracts of land; that a mistake was made as to its true location, and for that reason appellant is not bound by the line established — and cites in support thereof Schrader Min. etc. Co. v. Packer, 129 U. S. 688, 9 Sup. Ct. Rep. 385; Hatfield v. Workman, 35 W. Va. 578, 14 S. E. 153; Quick v. Nitschelm, 139 Ill. 251, 28 N E. 926. In the first case above cited it is held that “the assent was given, not to settle a dispute, but to acquiesce in the running of a line about which no dispute had then arisen, and upon the supposition that the person running it knew where the true lines were; that it was an acquiescence resulting from pure mistake or error." The court say the assent was givep “upon the supposition that the person engaged in running it knew where the true lines were.” No such supposition entered into the case at bar. The respondent desired to erect valuable improvements upon the boundary line separating said tracts. The grantor of appellant, by her agent, established the boundary and agreed with the respondent that he might erect his fence thereon. The respondent claimed the land in dispute, and had adverse possession thereof from April 15, 1883, to August 30, 1888 (during which time appellant’s grantor was the owner of, and in the possession of, said south half of northwest quarter of section 3), and from August 30, 1888, to December 22, 1891 (during which last period of time the appellant was the owner of said last described tract of land), making in all a period of eight years and over eight months that respondent had the quiet, peaceable, adverse possession of said disputed tract, claiming to be the owner thereof, and had valuable improvements thereon, without any claim being made thereto by appellant or its grantor. Thus the respondent had been in the quiet, peaceable, adverse possession of said land, claiming to be the owner, for a period of over three years longer than is required for the statute of limitations to run in the acquisition of title to real estate thereunder. This decision, however, is not based on that ground. We only state this as a circumstance that might justly be taken into consideration. We think that, under the facts of this case, it would be most unjust and inequitable to permit the appellant to recover said land. We do not think that the principle laid down in the first ease cited is applicable to the case at bar. In Hatfield v. Workman, sufra, the court say: “They were not attempting to fix or establish any new line, but Workman says they were aiming to run the line laid down by Commissioner Beekley in his division of this tract into lots. There is no evidence in this case that after said line was run, to ascertain in which lot the mouth of Denison would fall, either of the parties ever recognized it, or in any matter treated it„ as the boundary line between said tracts. It ran through wild and unimproved lands, and was evidently run by mistake.....All that appears to have been done by these parties, Workman and Mangus, was to run and mark this line. There was never any other recognition of it, no improvement or fence along it, and nothing else to indicate possession or ownership on either side of the line.” In that case the parties were in ignorance of the location of the true point at which to begin the survey, and the line was run for the purpose of ascertaining the correct dividing line, and not for the purpose of establishing one. - It will be observed that neither of the parties in the case just cited recognized or in any manner treated said line as the boundary line between said tracts. It presents a very different case than the one at bar. In the case of Quick v. Nitschelm, supra, the court say: “It is well settled in this state that the owners of adjoining tracts of land may, by parol agreement, settle and establish permanently a boundary line between their lands, which, when followed by-possession and the making of improvements, will be binding •and conclusive, and cannot afterward be disputed; but such an agreement must be clearly proven, and cannot be inferred from slight acts of the parties, although it may sometimes be implied from unequivocal acts. (City of Bloomington v. Bloomington Cemetery Assn., 126 Ill. 221, 18 N. E. 298.) In most of the cases when the rule has been held to apply, there has been no question as to the authority of the parties making such verbal agreement. There has been a dispute, or at any rate an uncertainty, as to the true location of the boundary line, so that the agreement operates as a settlement of what was unsettled. Both parties have taken possession of their respective tracts or lots after making the agreement, and have cultivated or otherwise improved the same up to the line agreed upon. Such possession has been continued for a considerable length of time, though the statute of limitations may not have run. The grantees holding under the parties to the agreement, where they have been purchasers for value, have generally had notice of it, either actually, or by reason of the long-continued possession of their grantors, and the recognition by the latter, for a considerable period of time, of the boundary line agreed upon.” We think the law as laid down in that case is applicable to the case at bar. The boundary line agreed upon was recognized by both parties, and the adverse possession under claim of ownership assented to, for nearly double the period of time required by the statute of limitations for the acquisition of title to real estate; valuable improvements had been placed on said land by respondent; and we think appellant is estopped from claiming said land. “When coterminous proprietors of land, in good faith, agree upon, fix and establish a boundary line between their respective tracts of land, the line so established is binding upon them and those holding under them.” (Cavanaugh v. Jackson, 91 Cal. 583, 27 Pac. 931; White v. Spreckels, 75 Cal. 616, 17 Pac. 715; Smith v. Hamilton, 20 Mich. 433, 4 Am. Rep. 398; Houston v. Sneed, 15 Tex. 308; Fisher v. Benehoff, 121 Ill. 435, 13 N. E. 150.) The judgment of the court below should be affirmed, with costs of this appeal in favor of the respondent, and it is so ordered.

Morgan and Huston, JJ., concur.