Bolton v. McShane

79 Iowa 26 | Iowa | 1890

Given, J.

i. appeal: otílSeabeiow. I. Appellant’s first contention is that the controversy was fully adjudicated by the ruling on ^le demurrer. It does not appear from the recor<l that the plaintiff made any objection in the district court to the defendant’s answering, nor to going to trial upon the issues joined by the answer. This court has uniformly held, and in many cases, that an objection not made, or question not raised, in the court below cannot be considered on appeal.

II. The highway in question should be upon the line between sections 4 and 5 of Linn township; and the controversy is as to whether the corners of said sections are sixty-seven links east or sixty-seven links west of the corner, between sections 32 and 33 of Brown township. If the corner between said sections 4 and 5 is sixty-seven links west of the corner between said sections 32 and 33, then the appellant’s fence is in the public highway; but, if east, it is not. We think the decided weight of the testimony is in favor of the conclusion that the corner between 4 and 5 is west of the corner between 32 and 33, and, therefore, so find.

' titie byAp?escnption. III. It appears, beyond question, that the track traveled, and which is outside of appellant’s fence, has been used for public travel for more than twenty years. It is evident that all parties supposed the traveled road to be along the section line. This court has repeatedly held that, in case of mistake of land-owners as to the division line in their lands, the possessor holding the lands as a part of his tract, and believing it to be within his boundaries, is not protected by statute. Grube v. Wells, 34 Iowa, 148. In State v. Welpton, 34 Iowa 144, it was held “that this rule is applicable to the case of the public using a way supposed to be on a certain line, but which, through mistake, is not really upon it. The claim of the public is confined to the true line. The use, in order to draw the benefit of the statute, must correspond with the claim of right.” The judgment of the district court is Aeeirmed.