236 P. 517 | Wyo. | 1925
This is an action brought on January 13, 1919, by the plaintiff, H.A. Carstensen, against defendant, Earl Brown, to recover a strip of land hereinafter mentioned. The parties will herein be referred to in the same manner as in the court below.
Plaintiff has the legal title to the SE 1/4 of the SW 1/4 of Section 21, and the NE 1/4 of the NW 1/4 and the W 1/2 of the NE 1/4 of Section 28, Township 48, Range 89 West of the 6th P.M. Defendant has the legal title to the E 1/2 of the NE 1/4 of Section 28, and the S 1/2 of the SE 1/4 of Section 21 in said Township and Range, which adjoins the land of the plaintiff on the east and partially on the north. Plaintiff brought this action against the defendant, alleging that the latter wrongfully kept him out of possession of his said lands. Defendant answered, alleging in substance that in 1901 plaintiff's grantor, one Oscar McNay, entered the land described in plaintiff's petition as a homestead, and during said year established the boundary line between said land and the land lying to the east and north thereof and now owned by defendant, by building a fence along said boundary line; that in 1904 McNay obtained a patent for said land and conveyed the same to the plaintiff, who immediately thereafter took possession of the land lying west and *494
south of said boundary line, and has resided upon and cultivated the same since that time; that about 1902 one William Greet, entered the land now owned by defendant as a homestead; that Greet was advised that a fence established by McNay was the true boundary line between said lands; that in the latter part of the year 1904, defendant purchased the improvements on the land entered by Greet, who thereupon relinquished his filing, and Brown filed upon the same as his homestead; that defendant had no information or knowledge respecting the boundary line between said lands other than the information conveyed to him by Greet, which was that the fence above mentioned was the true boundary line between said tracts; that the lands susceptible of irrigation upon said tract occupied by said Greet contains about sixty-nine acres and lies immediately east and north and next to said established boundary line; that relying upon the statements of Greet and the fact that he was in possession of said land lying immediately east and north of said fence and cultivating and farming the same, he was induced to and did pay Greet $1,000 for his improvements and thereafter filed thereon as a homestead, and from the year 1905 has been continuously in the open, notorious, visible and exclusive possession of said land, irrigating, cultivating and using said land lying east and north of said fence, and made valuable improvements thereon; that he received a patent for his said land on April 28, 1914; that plaintiff prior to November 23, 1918, at all times maintained said fence as the true boundary line between said tracts, never at any time prior to said date asserting any right to or claim upon any land lying east and north of said fence, but at all times acquiescing in and agreeing to the boundary line as established by his grantor, and that plaintiff is accordingly estopped from making any claim or asserting any interest in the land lying east and north of the said fence. Defendant, as a separate defense, also pleaded adverse possession. The case was tried to a jury, which returned a verdict in favor of said defendant. Thereupon *495
an appeal was taken to this court. The opinion in that case appears in
The dispute in this case is over a strip of land east and north along the boundary fence hereinbefore mentioned and the plaintiff seeks to move that fence to the east a sufficient distance so as to take of the lands heretofore claimed by the defendant, about forty-six acres. The land claimed by defendant contains only about sixty-nine acres of land fit for irrigation, all of it lying next to the fence in controversy. A ridge or bluff runs along the eastern portion of the lands of defendant, covering lands that are barren and of no value, and to move the fence in accordance with the claims of the plaintiff would leave the defendant with only a little over twenty acres of land out of a total of one-hundred sixty acres, which would be of any value. There is not much conflict in the evidence. Prior to 1903 and probably in 1901, one McNay made homestead entry on the land to which plaintiff has the legal title, and built the fence in question. It appears that very few, if any, of the monuments marking the original government corners in the township in which these lands are situated, could be found, and McNay had a line run by a surveyor from a supposed quarter section corner on what is called Buffalo Flat. The record does not show how far this corner is from the land in controversy. In any event, the surveyor surveyed up to a point approximately half a mile from the line on which the fence was subsequently built. The surveyor told McNay to look through his surveying instrument and step off a half mile and he would come to his east line, and it was *496 in that manner that McNay located the fence, determining the course north and south, as he says, "by the shadow of the sun at noon." He stated that the fence was not built with reference to government corners, because none could be found. In 1904 and 1905 McNay sold and conveyed the land to plaintiff and another and shortly thereafter plaintiff acquired the full title. In 1903 one Greet filed on the land, to which the defendant now has the legal title. In 1904 his possessory right and improvements were bought for $1,000 by the defendant, who thereupon filed on the land as a homestead, and who since that time has been in possession thereof, has irrigated and cultivated the strip in controversy and has made some valuable improvements thereon, the extent of which does not clearly appear. Greet testified that he showed defendant the land which, he presumed to be his homestead, and of which he presumed the fence to be the west and south line. A house had been built on the strip in controversy and was occupied by Greet and subsequently by the defendant in this case until a new house was built later. Greet supposed, from statements made to him, the source of which does not appear, that the fence constituted the true boundary line. The defendant testified that Greet told him that the fence was the line; that he had made claim to the land east and north of the fence aforesaid from the time that he had taken possession thereof, and that he paid taxes on the land under ditch on the east side of the fence. It appears from the testimony, that plaintiff and defendant exchanged work from time to time, and plaintiff never made any claim to any land east and north of the fence until the survey hereinafter mentioned was made. The witness Ilg testified that about 1914 the plaintiff showed him a boundary line on the northwest of the latter's land, which is supposedly a quarter of a mile west of the northern portion of the fence in controversy. During 1918 one Douglas, a United States surveyor, by direction of the Assistant Supervisor of Surveys, was assigned to make a re-survey of the township in which the land in *497 controversy is located, according to special instructions given by the Surveyor General of Wyoming. He testified that he made a survey accordingly, the purpose of which was to restore the section lines in a position as near as possible as they were laid down by the original survey. It is upon that survey that plaintiff bases his claim. It has not, however, been as yet approved by the United States Land Office and whether or not the lines as established by this surveyor, are in accordance with the original survey, is perhaps still a question. A few other facts will be stated hereafter and some additional facts may be found stated in the opinion of this court on the previous appeal, which were then considered of importance in connection with the claim of adverse possession and estoppel, but need not be referred to at greater length herein.
The questions considered in the former appeal were that of adverse possession and that of estoppel, and no others. A new question has been presented on this appeal, namely as to whether or not the fence above referred to became the true boundary between plaintiff and defendant under the doctrine of recognition and acquiescence thereof. Hence although the evidence is not materially different from what it was on the former appeal, we do not think that the rule that the decision on the former appeal is the law in this case, bars us from considering the new questions thus presented, and from deciding the case upon the record now before us. 4 C.J. 1906.
The doctrine of recognition and acquiescence of a boundary line is upheld by many authorities. 9 C.J. 244; Tiffany, Real Property (2nd Ed.) sec. 295; Thompson on Real Property, sec. 3112. It is sometimes referred to as acquiescence in, or as a practical location of, or as an implied agreement as to, a boundary. Considering all of the various jurisdictions in the United States, the doctrine is still in a chaotic condition, and no one has yet undertaken to point out definitely the circumstances under which it is applicable. Some of the authorities consider long acquiescence only as *498
evidence of a boundary, which may be contradicted. Tiffany, supra, sec. 295. Other authorities say that an agreement may be inferred or presumed from such acquiescence. Note, 110 A.S.R. 685. The doctrine seems to occupy a middle ground between adverse possession and estoppel in pais. It is frequently held that in order to work an estoppel by conduct it is necessary that the party against whom it is claimed, should have knowledge of the true boundary (Bigelow on Estoppel, 16th Ed., page 674) and as said in Carstensen v. Brown,
"It is well settled that the possession of coterminous proprietors under a mistake or in ignorance of the true line, between them and without intending to claim beyond the true line, will not work a disseizin, and set in motion the statute of limitation in favor of either, but it is equally as well settled, that when such proprietors, in ignorance of the true line, fix and agree upon a permanent boundary line, and possession is taken accordingly, the agreement is binding upon them, and those claiming under them. (Jacobs *500
v. Moseley,
It is well settled that parties may make an express parol agreement as to a boundary line. 9 C.J. 230. But to have a basis for consideration it must be in dispute or uncertain and not readily ascertainable, and to take it out of the statute of frauds it must be followed up by occupancy by the parties in accordance with such agreement, up to the line agreed on. 9 C.J. 231-237. Note 10 L.R.A.N.S. 610. It would seem that the elements of mistake involved, both in estoppel as well as adverse possession, are eliminated in a case when parties deliberately enter into an agreement under such conditions, in the absence of special circumstances which would relieve a party from a mistake, because want of knowledge of the true boundary, and uncertainty thereof, is made the very basis of the agreement. See 9 C.J. 231; but see 9 C.J. 237. The doctrine of recognition and acquiescence would seem to be based primarily, though not solely, upon the same principles as an express agreement. Some of the cases appear to ignore the factors of uncertainty or dispute, and in some instances of long recognition and acquiescence, it is perhaps, perfectly safe and just to do so, upon the basis of a presumption that all the factors necessary to establish the line existed, but we are not prepared at this time to say that ten years, the prescriptive period in this state, would suffice for that purpose. However that may be, it is well settled that an agreement to fix an uncertain or disputed boundary need not be express, but may be implied, and may be shown by the conduct of the parties. Miller v. Mills County, supra; Hubbard v. Stearns, *501
supra; Sneed v. Osborn,
"It has been frequently decided that though there is no express agreement as to the location of the boundary line, adjoining proprietors cannot question a line which they have, for a considerable number of years, recognized as the correct line between their properties. Some of the cases base this doctrine upon the theory that such recognition of or "acquiescence" in a certain line is conclusive of the existence of an agreement, while others seem rather to regard it as an independent rule of law, dictated by general considerations of justice and expediency, in order that uncertainty and disturbance of boundaries be avoided."
In a note to 110 A.S.R. 684, the author says:
"In fact, there can be no doubt as a general rule, that where the owners of adjoining lands occupy their respective premises up to a certain line which they recognize and acquiesce in as their boundary line for a long period of time, they and their grantees will not be permitted to deny that the boundary thus recognized is not the true line of division between their properties, especially when such possession has been accompanied by valuable improvements. * * * If a fence has been built or a hedge has been set out as a boundary, and thereafter has been *503 recognized as the true boundary by adjoining owners for many years; or if a fence already erected is maintained and treated and occupied up to as their line of division for a long period of time, they cannot, as a rule, question the correctness of its location. * * * The long practical acquiescence of the parties concerned in a supposed boundary line is spoken of by some courts as constituting such an agreement upon it as to be conclusive, even if it has been erroneously located. * * * Other courts say that an agreement may be inferred or presumed from such acquiescence. * * * Other courts declare that such acquiescence is evidence of an agreement. * * * It would seem more logical to say that acquiescence on the part of the persons interested in the boundary line is evidence, or perhaps raises a presumption, that such boundary line is the true one. * * * And where the acquiescence is for a long period of time, it becomes conclusive evidence of the correctness of the boundary."
In O'Donnell v. Penney,
"And even when no express agreement is shown, the authorities are numerous that acquiescence in a boundary line, assumed or established for a period equal to that prescribed in the statute of limitations to bar an entry, is conclusive evidence of such an agreement, and will preclude the parties from setting up the claim that the line so acquiesced in is not the true boundary. * * * This rule appears to have been adopted as a rule of repose, for the purpose of quieting titles, and preventing the uncertainty and confusion, and consequent litigation, which would be likely to result from the disturbance of boundary lines so long established." *504
In Baldwin v. Brown,
"The acquiescence in such cases affords ground not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary."
In Miller v. Mills County,
"Under either of these rules, however, the first inquiry always is, where is the true boundary between the tracts of land? And it may be remarked that there is nothing about the government surveys entitling them to reverence. The original purpose was to enable the government to dispose of the public domain in parcels accurately defined. That they abound in mistakes is notorious, and is evidenced in the reported decisions of nearly every state save the original thirteen. Nor are the ordinary surveyors quite infallible. Their successive surveys nearly always disagree. This, aside from frequent carelessness or incompetency, is inevitable, from the variations of the needle, and slight differences in measurements over uneven ground. Reference is had to the government survey as pointing out the lines by which the lands described in the patents passed from the government, and by which they are ordinarily transferred by deeds. But if the coterminous owners have adopted another line as their division line, and have occupied up to it and recognized it as such for a period of ten years, there appears to be no reason for not regarding it as the true boundary line, notwithstanding it is not that fixed by the government survey. Tracy v. Newton,
In Clayton v. Feig,
"The law applicable to this branch of the case, deducible from the decisions of this court, may be stated thus: Where there is a dispute between adjoining owners of land as to the true boundary line, or that line is unascertained, they may establish it, first, by parol agreement and possession in pursuance thereof, and the line so agreed upon will be binding upon them and their privies in estate; second, such an agreement may be implied from the unequivocal acts and declarations of the parties and acquiescence for a considerable length of time; third, such an agreement, either express or implied, is enforceable both at law and in equity, * * * fourth, the line may be established by way of estoppel, without any agreement, when the parties have had undisturbed possession in conformity thereto for more than twenty years."
To the same effect are: — Holmes v. Judge,
It is said, it is true, in 9 C.J. 245, that when a line is recognized and acquiesced in through a mutual mistake the parties will not be estopped to assert the true division line. The case of Yetzer v. Thoman, 17 Ohio St. 130,
We think that the rule mentioned is applicable in the case at bar. That the boundary line was uncertain is unquestioned; it is even uncertain now. With that in view the predecessor in interest of plaintiff erected a fence. This was about 1901. Greet, defendant's predecessor in interest established his homestead in accordance with that line and so did defendant, when he bought of Greet in 1904. Plaintiff purchased his land in 1904; he knew that Greet, and subsequently defendant, were in possession of the land east and north of the division fence, presumptively claiming ownership thereof. The parties in 1904 and 1905 jointly built an irrigating ditch, partially on defendant's land, which was used by defendant to irrigate the land east of the fence, and by plaintiff to irrigate land west of the fence. The fence was kept up jointly, each of the parties doing *508
more or less repair work on it from time to time. Plaintiff and defendant exchanged farm work at least as early as 1908, the former often helping the latter farm said land on the east side of the dividing line. In fact plaintiff helped defendant in breaking up some of his land and in putting it in cultivation. The witness Ilg testified that plaintiff showed him the boundary line on the northwest of the latter's land, a quarter of a mile west of the northern part of the fence mentioned. This was in effect the same thing, as though the fence in question had been pointed out as a boundary line, and was, if true, a distinct recognition that the fence was the true boundary line. From 1901 to 1919 the fence stood as a dividing line, and was never questioned as such, at least so far as came to defendant's knowledge, until shortly before this suit was brought in January 1919. In Stevenson v. Roebuck,
"Where adjoining lands have been divided by monuments marking a visible dividing line, and this line has been acquiesced in by the respective owners, possessing and cultivating up to such line for the statutory period, they will not be heard to say afterwards that the line is not the one to be recognized as the dividing line between the land. This may be shown by express agreement, or by the conduct of the parties, which clearly indicates an intent to recognize and hold the line so created as the true dividing line. * * * Lines adopted by parties and acquiesced in for so many years as this record shows these parties acquiesced in this line ought not to be lightly disturbed, and the secret purposes of the parties cannot be considered against their overt *509 acts of recognition and acquiescence. No party seems to have known at any time, and no party seems to have cared to ascertain for himself at any time, where the true government line should be. They built their fences, they made their lines, they cultivated their lands up to these fences, and, under the rule of acquiescence hereinbefore stated, they ought to be held to these lines so established and acquiesced in and should be held as a matter of law and fact to it as the true dividing line between their lands, beyond which neither ought to be permitted to trespass."
What makes the doctrine aforesaid peculiarly applicable in the case at bar is a fact which we have not heretofore stressed, namely, that the lands of plaintiff as well as of defendant were taken up, cultivated and improved as homesteads under the laws of the United States. Certain equities arose by reason of that fact. These equities are discussed in Mason v. Braught,
"The rule is well settled by a long course of decisions that when public lands have been surveyed and placed in the market, or otherwise opened to private acquisition, a person who complies with all the requisites necessary to entitle him to a patent in a particular lot or tract, is to be regarded as the equitable owner thereof."
To the same effect see Hedrick v. R. Co.,
In the case of Mason v. Braugh, supra, the land in dispute was the SE 1/4 of a Section 4, settled upon and improved by plaintiff's grantor. Defendant's grantor settled upon and improved the SW 1/4 of the same section. Defendant subsequently claimed the SW 1/4 aforesaid to be one-half mile further east; he claimed, in other words, that what had been supposed to be the east line of the SE 1/4 was actually *511 the east line of the SW 1/4. The court in disposing of the contention of the defendant states as follows:
"It is undisputed that for more than twenty years prior to the commencement of this action, plaintiff and his grantors had been in the undisputed possession of the tract of land in question, claiming the same, first, as entrymen under the Timber Culture Act of the United States and afterwards, under patent issued by the government. During all of such time they had been making improvements thereon, believing in good faith that they were the owners of the premises so occupied. At this late date, and under the circumstances disclosed in this case, the defendant should not be heard to claim that he or his grantor ever acquired any title to or interest in the tract of land in controversy, and this too, regardless of whether or not, through some mistake of the government officials or government surveyor, there was issued to his grantor a patent to this tract of land, when his grantor had no right to the same."
The facts in the case of Snider v. Ostrander, supra, were similar to those in Mason v. Braught, supra. The patent issued to plaintiff's predecessor in interest in that case covered lands situated about one mile east of the lands located, settled upon and improved by him; and a patent for the lands so located and settled upon was issued to defendant's predecessor in interest, who had, however, actually located, settled upon and improved entirely different lands. The location and settlement had evidently in both cases been made under a mistake as to boundaries. The plaintiff brought an action to quiet the title to his lands. The court said:
"But there has always existed in courts of equity the jurisdiction to correct mistakes where lands have been given one claimant, but which unmistakably belong to another. * * * The defendant in error (plaintiff) according to his complaint, seeks only to obtain the legal title to lands *512 possessed and equitably owned by him and his predecessors in interest. The very suggestion of the conditions, as set forth in the complaint, if true, ought to satisfy any litigant that he or she could have no standing on the merits in a court of equity and a common duty should dictate to parties so situated that they lend all voluntary assistance on demand, to correct such errors as are here complained of, so as to permit each one to secure a patent to the premises upon which settlement, improvement and residence were established. To accomplish any other result would be a flagrant defeat of the cardinal purposes of the homestead and preemption laws of the United States, which are intended to provide 160 acres of government domain to such qualified citizens in the United States as in good faith settle upon, improve and occupy the same as permanent homes. The facts averred in the complaint are sufficient to entitle the defendant in error to a decree quieting his title to the premises in dispute and to justify the court in declaring that the plaintiffs in error hold the legal title thereof in trust for the defendant in error."
The opinions in the two cases just cited are so convincing that little more need be said. We think that the plaintiff in this case should be held to have acquiesced in and be bound by the boundary line established by his predecessor in interest.
The judgment in this case must accordingly be reversed and remanded to the district court with direction to enter judgment in favor of the defendant and make any other, proper order herein not inconsistent herewith. It is accordingly so ordered.
POTTER, C.J., and KIMBALL, J., concur.