Action brought under Laws 1893, c. 68, to determine the boundary line between the lands of the respective parties. Plaintiff had judgment in the court below, and defendants Stevens appealed from an order denying a new trial.
The case was here on a former appeal. 77 Minn. 375, 82 N. W. 1118. The facts are as follows: Plaintiff is the owner of lots 9 to 14, inclusive, of Dawson & Smith’s enlargement to Dawson & Smith’s addition to the city of St. Paul, having acquired title thereto by conveyance from James T. McMillan, his immediate predecessor in title. Defendant Stevens owns lots 15 and 16, ad
“The westerly line of the premises hereby conveyed being the easterly line of the premises conveyed by said first parties (McMillan and wife) to Hiram F. Stevens, by deed dated December 17th, 1885, and recorded October 15th, 1886.”
Prior to this conveyance McMillan had erected a fence along the line supposed to have been fixed by his deed to Stevens, and in the erection of his dwelling house upon the lots owned by him plaintiff treated the fence as upon the correct boundary line. There is no evidence that plaintiff was induced to rely upon such line by
As a matter of fact the true boundary line between the properties as fixed by the original survey and. plat is some fifteen feet to the east of the line fixed by the McMillan deed, and plaintiff’s stable, and the piers to the carriage porch attached to his residence stand upon lot 15. The whole difficulty and doubt as to the true boundary line arose from the fact that the city appropriated off the east end of the plaintiff’s lots about nineteen feet for street purposes, and this fact was unknown to Stevens or McMillan at the time, the latter claimed that the residence of Stevens projected over onto his lots.
The trial court found the facts substantially as stated; also that there was a controversy between Stevens and McMillan as to the boundary line between their respective properties, and that, to settle and adjust the same, the deed already referred to, conveying to Stevens the triangular piece of land, was executed; and, further, that defendant pointed out the line so fixed to plaintiff at the time of the erection of his stable, and that plaintiff erected the same with reference to the line so pointed out. As conclusions of law the court held that there was a practical location of the line, and that defendant Stevens is now estopped from disputing the same. The principal question before us is whether the findings in this respect are sustained. If there was no practical location of a different one, the actual boundary as fixed by the original survey and plat must control.
“Evidence of what is called a 'practical location’ of the boundaries of real property is often competent in cases of controversy respecting division lines, and it is sometimes difficult to determine whether such evidence should be received or rejected. Where there can be no real doubt as to how the premises should be located according to certain and known boundaries described in the deed, to establish a practical location different therefrom, which shall deprive the party 'claiming under the deed of his legal rights, there must be either a location which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations, or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof, and afterwards acquiesced in, or the party whose right is to be barred must have silently looked on while the other party acted or subjected himself to expense in regard to the land, which he would not have done if the line had not been so located. But to establish a practical location which is to devest one of a clear and conceded title by deed, the extent of which is free from ambiguity or doubt, the evidence establishing such location should be clear, positive, and unequivocal. There should be an express agreement made between the owners of the lands, deliberately settling the exact, precise line between them, and acquiescence for a considerable time; or, in the absence of proof of such agreement, it should be as clearly and distinctly shown that the party claiming has had possession of the premises claimed up to á certain, visible, and well-known line with the knowledge of the owner of the adjoining land, and his acquiescence continued for a considerable period of time. What this period is has not been limited or defined, is quite vague and uncertain, and must necessarily depend upon the particular circumstances of each case. It has often been said that this acquiescence must have continued for a period of time scarcely less than that prescribed by the statute of limitations; and in some cases it has been held that the doctrine that an express agreement, recognizing an erroneous boundary line,*38 will conclude a party, must rest, if tenable at all, upon tbe principle of estoppel.”
Under this decision the practical location of a boundary line can be established in one of three ways only: (1) The location relied upon must have been acquisced in for a sufficient length of time to bar a right of entry under the statute of limitations; (2) the line must have been expressly agreed upon between the parties claiming the land on both sides thereof, and afterwards acquiesced in; or (3) the party whose rights are to be barred must, with knowledge of the true line, have silently looked on while the other party encroached upon it, and subjected himself to expense in regard to'the land, which he would not have done had the line been in dispute.
The first can have no application to the case at bar, for there was no acquiescence in any particular line a sufficient length of time to bar an action to recover possession of the land, which,, under our statutes, is fifteen years. Nor can the second have any application, because there was no such an agreement fixing a definite line as will bring the case within the rule of the case just cited. The purpose of the deed from McMillan to Stevens was not to establish or agree upon a boundary line between the properties of the parties. In the execution and delivery of the deed they acted on the theory and belief that the survey made at their instance was correct, and in accordance with the original plat; not on the theory that the true line was lost, or in doubt,' for they supposed they knew where it was. There was no dispute or controversy between them, and no such a deliberate settlement of a lost or unknown boundary as to preclude defendant Stevens from now claiming property that is concededly his. The strip of land conveyed to him by McMillan was in fact his own. He bought and paid for his own property. But that transaction was founded wholly on a mistake, and on the supposition that the true boundary line was fixed by the survey upon which the parties then acted. Both relied upon the survey made at that time as correct, and they acted upon it accordingly. McMillan mistakenly supposed that he was conveying to Stevens a part of lots 9 to 14, inclusive, owned by him; and Stevens mistakenly supposed that he
Parties so situated and acting might be bound and concluded, however, as to intervening third persons, on the principles of estoppel; and the important question here involved is whether defendant Stevens is estopped from asserting title to the true boundary line of lot 15 by any conduct on his part. We are of opinion that he is not, except, possibly, to the extent of the land covered by plaintiff’s stable. In the erection of his house plaintiff did not act or rely upon any statements of Stevens in reference to the boundary line, but instead upon the deed from McMillan to him. The deed to Stevens did not purport to fix or establish a boundary line, and the deed to plaintiff conveyed lots 9 to 14, inclusive, “according to the recorded plat,” and by that plat must be measured the extent of plaintiff’s property. The attempt therein to define the boundary line was unknown to Stevens, and he is not bound by it. Defendant Stevens did not know, at the time of the erection of plaintiff’s house, the precise location of the true boundary line, and he was not aware of the fact that plaintiff had extended his house over the true line, and he did not knowingly permit him to do so. So far as the erection of the house is concerned, there is clearly no evidence in the record upon which to base an estoppel by conduct. If Stevens knew the true boundary line at the time, and with that knowledge, had permitted plaintiff to erect his house upon his (Steven’s) land, he would be conclusively estopped from now disputing the right of plaintiff to maintain his house.where so erected.
It is claimed, however, in respect to the stable; that, before plaintiff commenced the erection of the same he inquired of
Prior to the trial of this action defendant Stevens and wife executed and delivered to plaintiff an agreement by which they conferred upon him the perpetual right or easement to maintain his stable and the piers of his carriage porch as now located, and it would seem, if this agreement is valid — and Stevens does not question it, but, on the contrary, pleads and relies upon it in defense — that this long pending case should be brought to a close. It cannot bo questioned but that, according to the original survey and plat of this addition to St. Paul, the true boundary line is at the point contended for by Stevens, and, as the evidence now before the court (it was properly all presented) is insufficient to estop him from asserting title to that line, except to the extent stated, there is little left for contention between the parties. And inasmuch as Stevens concedes .a right and easement in plaintiff to maintain his buildings where now located, the controversy ought to be settled without much further litigation. A judgment according to these conceded rights would fully protect both parties.
Order reversed, and a new trial granted.