Sheldon v. Atkinson , 38 Kan. 14 ( 1887 )

The opinion of the court was delivered by

Horton, C. J.:

This was an action in the nature of ejectment, brought by H. F. Sheldon against Robert Atkinson, for the possession of a strip of land in Ottawa, thirty-six feet wide north and south, and about six hundred feet long east and west. Both parties claim title from the same common source, one R. D. Lathrop. The several pieces of land in which it is claimed there is a surplus of thirty-six feet, owned by Atkinson, are marked upon the map in the.record as “the little red piece,” “the little blue piece,” and “the little white piece.” “The little red piece” was purchased from Wilson and Burt, grantees of Lathrop, by Atkinson in April, 1868, but the deed was not executed until the fall of 1868, or later. “The little blue piece” was purchased by Atkinson from Lathrop, April 2,1868. “The little white piece” was purchased from Sheldon by Atkinson, October 27, 1870. Sheldon alleges that a strip thirty-six feet wide off the south end of these several pieces belongs to him,, and that Atkinson keeps him unlawfully out of the possession of the same. Atkinson bases his claim to the strip of land in controversy, first, by fifteen years’ adverse possession; and second, by a parol agreement between himself and the owner of the laud adjoining his “little red piece” and his “little blue piece” on the south as to a corner and division line, w'hich he contends has been acquiesced in and acted upon for such a long time as to be binding and conclusive.

The ti’ial was had before the court without a jury. No request was made for a finding of the facts specifically. As the court made a general finding only, and as the finding of the court was favorable to Atkinson for the strip of land inclosep in “the little red” and the “little blue pieces,” we must assume that all the controverted facts as to this strip were found and established in favor of Atkinson and against Sheldon. (Knaggs v. Mastin, 9 Kas. 532.) Again, a general finding in favor of Atkinson for the strip of land in “the little red” and “the little blue pieces,” embraces all the facts necessary to constitute his claim thereto, if there was sufficient evidence in support of the same. (Bixby v. Bailey, 11 Kas. 359; Hobson v. Ogden, 16 id. 388.)

In viewr of the general finding of the trial court, it appears that although Wilson and Burt did not execute any deed to “the little red piece” to Atkinson until late in 1868, or early in 1869, his purchase, or his agreement to purchase, under which he took possession and claimed to be the owner thereof, goes back to April, 1868. Soon after the purchase by Atkinson of “the little red piece,” he informed Jenness, the owner of the land adjoining on the south of his purchase, and read him a letter concerning the same. About six weeks after this, Jenness went to Atkinson and said he would like to fix the corner between them, as he wanted to build some fence. Atkinson got a colored man and went with Jenness upon the ground to establish the corner of their pieces of land. A tape-line was used, and the measurement was commenced at a government corner-stone on the Jenness property; the parties proceeded from that point north, and measured off three hundred and eighty-five feet, and placed a stake; Atkinson and the colored man carried the line, and Jenness did the marking. The stake was driven at the point established as the northeast corner of the Jenness land, and the southeast corner of the Atkinson land. That fall, or the next spring, the owner of the Jenness land, either Jenness or his grantee, built a fence upon a line commencing at the corner established by Jenness and Atkinson, running directly west to the west line of the land. In the spring of 1869, Atkinson had a hedge-row plowed on the line along the north side of the fence from the stake westward, and around the tract composing the little red and blue pieces. In the spring of 1870, he had the hedgerow replowed, and a hedge planted on the line so plowed, which has since been cultivated and grown, and still remains. At the time of planting this hedge, the stake driven by Atkinson and Jenness at the northeast corner of the Jenness land was noticed. The boundary line projected from the stake driven by Jenness and Atkinson at the corner of their lands, which were subsequently fenced and hedged, was regarded by the various proprietors of the adjoining pieces of land as the division line between them until a short time before the commencement of this action. During all this time Atkinson was an actual resident of this state, and was absent from the state less than nine months. This action was commenced on May 31, 1884, about sixteen years after the stake had been driven0 to establish the comer or line between the Jenness and Atkinson lands.

Many of the courts hold that a parol agreement between two proprietors of adjoining lauds to employ a surveyor to run the dividing line between them, which agreement is executed and payment had accordingly for a long period of time, but short of that prescribed by the statute of limitations, is binding and conclusive on the parties and those claiming under them. (Finley v. Funk, 35 Kas. 668; Turner v. Baker, 64 Mo. 218; Brown v. Edson, 23 Vt. 435; Boyd v. Graves, 4 Wheat. [17 U. S.] 512.) The authorities that do not go to the extent of this rule generally agree that if a division line is marked out and acquiesced in by joining proprietors for a period equal to the statute of limitations, it is thereby conclusively established. (Kip v. Norton, 12 Wend. 127; 27 Am. Dec. 120; 27 Am. Rep. 230.)

In a review of cases of the voluntary adjustment of boundaries between contiguous estates, Judge Cooley says “the parties have only by their agreement and contract determined the limits of their respective ownerships.”

Redfield, J., in Beecher v. Parmele, 9 Vt. 352, said:

“If an entire lot be owned by different proprietors, who are in possession of separate parcels of the lot, and a divisional line is acquiesced in for fifteen years, it is thereby established. If no line of division be in fact drawn, but the parties acquiesced in an imaginary line of division, this is the same as if the line had been marked by visible monuments.”

The claim is made, however, on the part of Sheldon, that the agreement between Jenness and Atkinson was merely as to the establishment of a corner, but nothing was said about any boundary, and that no line was fixed westward from the corner established. The fact that Jenness requested Atkinson to agree with him upon a comer between their lands, as he wanted to build a fence; the actual meeting of the parties, and the establishment of a corner by them; the driving of a hard-wood stake to identify and mark the corner; the construction of a fence in the fall of 1868, extending from where the corner was established, running directly west along the existing division or boundary line; the plowing of a hedgerow, in the spring of 1869, on this division line; the re-plowing, and the planting of a hedge upon this line, in the spring of 1870, support the general finding of the district court that the corner and division line between the lines of Atkinson and Jenness were established by the parol agreement of these parties in the spring or early summer of 1868. All of the boundaries of the various pieces of land mentioned in the pleadings and testimony run north and south and east and west. The purpose of fixing the corner between the lands of Atkinson and Jenness was to determine and mark the commencement of a boundary line extending from such corner directly west. Under these circumstances, the fixing of the corner necessarily established the boundary line as running due west therefrom. The corner was not marked or fixed for the purpose of establishing any boundary line running north and south. The place where Jenness wanted to build his fence' was at or near the boundary line between his own land and that of Atkinson. As a period equal to the statute of limitations had expired between that time and the commencement of this action, deducting the nine months of absence of Atkinson from the state, we conclude that the corner and the division line then established and now existing must be regarded as the corner and division line between the land of Sheldon and “the little red and blue pieces” owned by Atkinson.

Again, it is urged that there was no dispute or contention between Atkinson and Jenness at the time of the establishment of the corner between their lands, and it is said that their agreement as to the corner and the marking of the same with a stake goes for naught, notwithstanding the long acquiescence in the corner and division line by all the parties interested. The evidence clearly shows that prior to the time of the establishment of the corner by Atkinson and Jenness, the boundary line between their lands was not known, ascertained, or settled; it was not marked by stakes, monuments, or in any other way. The true line of division between their pieces of land was a subject of settlement between Atkinson and Jenness. They met together, and after a measurement expressly agreed upon a corner between their lands, and from that time to the commencement of this action a line running west from the corner thus established by them was considered the true line of division between the pieces of land. The object of Atkinson and Jenness in ascertaining and agreeing upon a corner was to settle and fix a definite corner and boundary; and therefore it is not like the cases where the corners and boundary line are known and visibly marked, and the adjoining owners attempt for mutual convenience, or other sufficient reason, to transfer land from one to the other by parol agreement to merely change the location of a line. (Vosburgh v. Teator, 32 N. Y. 568.)

It is further claimed that, admitting there was a valid agreement between Atkinson and Jenness fixing the corner and boundary line between their lands more than fifteen years ago, the agreement, although valid as between them, is not binding on Sheldon. The construction of the fence upon the boundary line west of the corner established by Atkinson and Jenness is evidence that at the time the parties understood where the corner and boundary line were established, and acted upon that knowledge. All persons purchasing after the establishment of the corner, and after Atkinson had taken actual possession of the premises in dispute, had notice of his title thereto. When Sheldon purchased, Atkinson had actual, open, visible, notorious, exclusive and adverse possession of the strip now claimed by him. (Gilmore v. Norton, 10 Kas. 491; Giles v. Ortman, 11 id. 59; Johnson v. Clark, 18 id. 164; School District v. Taylor, 19 id. 292; Tucker v. Vandermark, 21 id. 263.)

In the case of Winn v. Abeles, 35 Kas. 85, there was no agreement as to the actual corners or boundary line, and no hostile and adverse possession; therefore that case is notin conflict with this decision.

We have referred only incidentally to the strip of land on the south end of “ the little white piece,” because, as we understand the judgment, that strip was recovered by Sheldon. Atkinson filed a motion for a new trial, which was overruled and properly excepted to, but he has not filed any petition in error, or any cross-petition, in this court; and he is therefore in no condition to complain of the judgment, even if erroneously rendered.

The judgment of the district court will be affirmed.

Johnston, J., concurring.