184 Iowa 1253 | Iowa | 1918
The defense is a general denial of plaintiff’s title, and a claim: (1) That the defendant has been in adverse possession for more than ten years, under color of title and claim of right; and (2) that, for more than ten years before the commencement of this action, a division fence was erected as a boundary between the tym lots, and that this fence has been acquiesced in by both parties for more than ten years, as the true boundary line; that, though this fence is 30 feet down on plaintiff’s land, yet the plaintiff .has acquiesced in it as the true boundary line for the statutory
One Pierson owns land immediately south of the plaintiff’s. A roa<b known as the Lakeport Road, forms the east line of these lots. There is another road on the north line of defendant’s land, used and traveled, but never laid out and established as a highway or a road. Plaintiff purchased his lot in September, 1903, and took possession in October, 1903, and built the fence which it is now claimed is the true line.
There is some conflict in the evidence as to the exact date when this fence was' built. Some of the testimony shows it to have been built in the spring of 1907. Other testimony tends to show that it was built in the fall of 1906. Defendant purchased his land in October, 1906, and took possession on January 1, 1907. There is no claim of adverse possession on the part of any of defendant’s grantors, nor is there any claim of acquiescence in any line prior to the building of this fence by the plaintiff in the fall of 1906, or the spring of 1907. The adverse possession, therefore, if any there is, must date from the taking possession by the defendant, and the acquiescence must date from the time of the building of this fence.
As said before, one Pierson owned the land immediately south of the plaintiff’s. In 1911, a controversy arose between Pierson and the plaintiff, in which Pierson claimed that the plaintiff was occupying 30 feet along the north line of the lot owned by him, and a surveyor was called out, to ascertain by survey the true line between all these tracts. This survey was acquiesced in by the plaintiff, by the defendant, and by Pierson. The defendant contributed towards paying the expense of the survey. This survey developed the fact that the defendant was 30 feet too far south, and on plaintiff’s land, and that the plaintiff was 80 feet too far south, and on Pierson’s land. The correctness of this
There was some talk between the plaintiff and the defendant of compromise, which was never effected. The plaintiff, however, disputed defendant’s right to hold this 30 feet which was in controversy, and the defendant maintained his right to hold it after these controversies arose, and finally insisted, when suit was commenced, that he had a right to hold it, either on the claim of adverse possession, or on the theory of acquiescence.
The trial court found that the plaintiff Avas the owner of the land, and that defendant had acquired no right to it, either by adverse possession or acquiescence, and entered a decree in favor of the plaintiff, as prayed, quieting the title to this strip of land in the plaintiff. From this action, the defendant appeals.
For a better understanding, and an explanation somewhat of the way in which the conditions arose, out of which this controversy developed, we will say that the record shows that the land owned by these three parties is in the west half of the southwest quarter of Section 5; that there is a road on the half-section line, running east and west through the section, and another road running south along the east line of these tracts, known as the Lakeport Road; and the defendant’s land extends north to the half-section line. His deed gives him a strip of land enclosed as follows: Commencing at a point on the half-section line running east and Avest; running thence south, 20 rods along
So we start with the proposition that, under the deeds, this 30 feet properly passed to the plaintiff; that the building of the fence occurred through a mistake in measurement, in that the measurement was made from the south side of this east and west road, rather than from the half-section line.
This brings us to consider whether the plaintiff has lost his rights to this land, either by adverse possession or by
Although there is some testimony.that the defendant intended to claim up to the fence, as built by the plaintiff, the record, considered as a whole, satisfies us that neither intended to claim beyond the limitations in his deed, — beyond the boundary of the land conveyed, as fixed in the deeds; that each claimed the right to the possession of the five acres covered by his deed, and no more. There is no evidence tending to show that, prior to the controversy which arose in 1911, the defendant made any claim to any other land than that which was described in his deed, except as this might be indicated by his possession. He could not honestly make claim to any other land, for he purchased no other. It may be assumed that, when plaintiff put in the fence (it will be noted that plaintiff purchased first, and built his fence), the defendant thought his line extended to the fence; but there is no evidence that he claimed any land beyond the boundaries of the description in his deed. The mistake of both was in measuring from the south side of the east and west road, instead of from the half-section line, and the occupancy of each was regulated by this mistake. The possession of the defendant, therefore, beyond the limit of the land purchased by him, of necessity cannot be said to be under claim of right. The claim of right cannot rest on mere possession
“Where the intention in taking possession of a piece of land is to occupy only up to the true line, no occupancy beyond that is adverse; or, in other words, where one takes possession of a piece of land, and claims a right to occupy the same up to the true line only, and by mistake of measurement, or otherwise, takes possession beyond the true line and occupies it for the' statutory period, he acquires no title by such occupancy.”
It will be noted that the defendant did not build the
This brings us to a consideration of the second question: Is the plaintiff entitled to hold it under the theory of acquiescence?
Upon the whole record, we think the court was right, and its judgment is — Affirmed.