112 Iowa 657 | Iowa | 1900
Defendant attempts to sustain his right to remove the 'fence on the ground that it incloses a portion •of the highway. The record of the original survey of this road is missing. There is no evidence, save a presumption ■as to how wide it was laid out, and none as to its actual boundaries, other than the conflicting recollections of witnesses. There is some evidence to warrant the conclusion that plaintiff’s fence stands on the line of the highway as it was first established. But, if this is not so, the decree may be sustained on another ground. Plaintiff might, under certain circumstances, obtain a title by adverse possession as
We will not review the facts in - detail. 'Plaintiff’s fence was built on the line where it now stands more than 30 years ago, and in no way, until defendant threatened action, has his right to maintain it been legally questioned. It is true witnesses testify to there being complaints by different persons of late years that a- part of the road was inclosed, but no steps for the removal of the fence were ever taken. When plaintiff’s fence ¡was first placed on this line by his grantor, it was done in the belief that the line was the true one, and such action was acquisced in by the public. While possession of an adjoining owner’s land by mistake and without intent to assert title thereto is not adverse (Wacha v. Brown, 78 Iowa, 432, and cases cited), yet acquiescence in a certain line, with possession up to it, for a period of 10 years, is conclusive evidence of an agreement on it as the true line, and will bind the parties concerned. Miller v. Mills County, 111 Iowa. 654. Under the law as announced in that case, plaintiff’s title to the land inclosed is set at rest in him, and the decree of the trial court will therefore be aeeirmed.