Francis v. Micklethwait

BY THE COURT

The facts stated in the opinion of the trial court seem to be sustained by the evidence. It appears that by mutual mistake of the original owners the dividing line between lots 66 and 67 was established approximately three and one half feet from the true line over and on lot number 66. Thid court has always recognized the rule that a dividing line fixed by mutual mistake of the adjoining land owners does not pass title until the lapse of the statute of limitations. This rule rests upon the doctrine that there is no consideration for the enforcement of such mistake. Under such circumstances, however, the parties to the transaction have a right to an equitable adjustment of any expense growing out of improvements made prior to the discovery of the mistake and to any other equitable adjustment of their rights that may be necessary to save them harmless.

We conclude in this case that Oscar R. Micklethwait is entitled to use the building that has been erected on a part of lot number sixty six as long as said building stands and upon the condition that he pay to the plaintiffs in error the amount named by the trial court as damages and rental. He is not, however, entitled to a conveyance in fee of the three and one half feet he is now occupying and the order of the trial court directing such conveyance is reversed. The judgment so modified is affirmed.

MAUCK, PJ, MIDDLETON and BLOSSER, JJ, concur.