185 P. 567 | Wyo. | 1919
In this case the parties occupy the same relative positions as in the District Court and will be referred to as plaintiff and defendant.
Plaintiff has the legal title to the SE^4 of the SW54 of section 21, and the NE/4 of the NWJ4, and the of the NEj4 of section 28, Tp. 48 N., R. 89 W. of the 6th P. M. Defendant has the legal title to the Ej4 of the NEj4 of section 28, and the Sj4 of the SEji of section 21, in said township and range. Plaintiff brought the action against the defendant, alleging that defendant 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 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 the 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 defendant filed on the same as a 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 relying on the statements of Greet and the fact that he was in possession of all the land lying immediately east and north of said fence and cultivating and farming the same, was induced to and did pay Greet $1,000.00 for his improvements, and thereafter filed thereon as a homestead, and
The case was tried to a jury which returned a verdict in favor of defendant. A motion for a new trial was denied and judgment entered on the verdict, and plaintiff appeals.
.The defendant has filed a motion to dismiss the appeál for the reason and on the ground that it does not appear from the record on appeal that the judge of the District Court, before whom the action was tried, was notified in writing, or at all, that the record on appeal in the case had been perfected and was on file in the office of the clerk of the District Court, as required by section 10, chapter 32, S. L. 1917. Said section provides, “The Clerk of the District Court shall, within five days after the specifications of error are filed in his office, notify the judge of the District Court before whom the action was tried, in writing, that the record on appeal in the cause is perfected and on file in his office,” etc. There is nothing in the statute requiring that the record on appeal shall show that such notice was given. Also the record on appeal must be perfected and filed in the office of the clerk of the District Court before the notice is to be given, and, therefore, the notice could not be a part of such record. The clerk is presumed to have done his duty by giving the notice, at least in the absence of any showing to
The controversy in this case is over a strip of land between a certain fence and the boundary line between the lands to which the respective parties have the legal title, and contains about fifty acres. There is not much conflict in the evidence, which is to the effect, that, 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. It appears that very few, if any, of the monuments marking the original government corners in the townships in which these lands are situated could be found, and McNay had a line run by a surveyor from a supposed quarter section corner presumably on the north line of the township (as McNay testified that the surveyor called-it a correction line) “down” some distance but found no established corners. He then-told McNay to look through the instrument and step off a half mile and he would come to his east line; and it was in that manner McNay located the fence, determining the course north and south, as he says, 'by the shadow of the sun at noon. He says that the.fence was not built with reference to government corners because none could be found. In 1904 or 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 defendant now has the legal title, and in 1904,' defendant bought his improvements and he relinquished and defendant filed on the land as a homestead and has since been in possession and has irrigated and cultivated the strip in controversy, or a part of it, up to the fence. Greet testified that he showed defendant the land “he naturally' supposed was on the place.” Did not show him any boundary lines of the place. Had no conversation with him about the fence. Supposed that the fence was the line, but did not know whether it was or not. Only claimed the land because he thought it was part of his homestead. Defendant testified that Greet told him the fence was the line. That he claimed to own to the fence; but on cross-examination stated, “I am
We do not consider the evidence sufficient to sustain the defendant’s claim to the strip of land in controversy by prescription. He repeatedly testified that he claimed it because he thought it was a part of the land upon which he had filed and for which he afterwards received a patent. It is true that in answer to a leading question he stated that he intended at all times to claim and hold to the fence whether it was the true line or not; but that statement is in direct conflict with his former repeated statement, and inconsistent with an honest purpose. We are not convinced that it was his deliberate intention to take from his neighbor between forty and fifty acres of land to which he had neither title nor right; but, on the contrary, to take only that described in his entry and patent; and that in taking possession of the strip he did so under the mistaken belief that it was a part of the land he had entered, and without intention of claiming beyond the true boundary thereof. Giving to the evidence the full probative force to which it is entitled, the case on that point comes within the rule announced by this court in Fieldhouse v. Leisburg, 15 Wyo. 207, 88 Pac. 214, followed in Allen v. Lewis, 177 Pac. 433.
The defendant also pleads an equitable estoppel, alleging that in 1901 plaintiff’s grantor established ,the boundary line
Applying these rules to the evidence in this case, was there sufficient substantial and credible evidence to support the verdict and judgment; and was the jury correctly instructed as to the law of estoppel? Upon that branch of the case the court instructed the jury as follows:
“You are instructed that if plaintiff’s grantor established the fence shown upon the maps in evidence as the eastern boundary of his land and plaintiff purchased said land and entered into the occupation of it, knowing that said fence had been built and was being maintained and kept in repair as the eastern boundary line of plaintiff’s land, and in 1908 knew that said fence was some distance west of the correct boundary, and if you further find that after the establishment of said line and the construction of said fence, the defendant purchased the improvements upon and acquired title to the tract of land lying immediately east and north of plaintiff’s land, believing and having good cause to believe that said fence was the true line -between said tracts and if you further find that defendant has, with the knowledge and acquiescence of plaintiff occupied, cultivated and used and placed valuable improvements on the land lying immediately east and north of said fence continuously for the past fifteen years, then you are instructed that plaintiff is estopped from maintaining or claiming that the boundary line between said tracts of land is east and north of the place where said fence is now located and your verdict should be for the defendant.”
There is no evidence in the record that plaintiff’s grantor (McNay) established the fence as the eastern boundary of his land. He testified that the fence was not built with reference to government corners for the reason that they could not be found, and stated the manner in which he attempted to approximate the line; but there is no evidence that he at any time stated or claimed it as the true line. It must be
The instruction given to the jury, we think, was calculated to mislead and probably did mislead the jury. It stated only a part of the law applicable to the evidence, and they should also have been told, in effect, that if they found from the evidence that the parties were both ignorant as