154 Iowa 34 | Iowa | 1912
The testimony clearly brings the case within the rules announced in Miller v. Mills County, 111 Iowa, 657; Hiatt v. Kirkpatrick, 48 Iowa, 78; Foulke v. Stockdale, 40 Iowa, 99; Tracy v. Newton, 57 Iowa, 210; Trust Co. v. Emerson, 125 Iowa, 86; Laughlin v. Francis, 129 Iowa, 62; Hootman v. Hootman, 133 Iowa, 632; Fullmer v. Beck, 105 Iowa, 517; Keller v. Harrison, 139 Iowa, 394; Axmear v. Richards, 112 Iowa, 657; Klinkner v. Schmidt, 114 Iowa, 698; O’Callaghan v. Whisenand, 119 Iowa, 568; Harndon v. Stultz, 124 Iowa, 734, and other like cases, and justifies the judgment entered by the trial court, unless it be for a claim, not made in any of them, but here present, to the effect that the line elaimefL for defendant was established by a survey which, it is claimed
The line having been established by acquiescence and adverse possession, and having been recognized by the grantors, immediate and remote, of the parties hereto for more than twenty years before the new survey was agreed to, the controlling question in the case is the effect to‘ be given the new survey. The trial court was justified in finding that, while the parties agreed to a new survey, plaintiff’s version of the agreement is correct; and that he never, at any time, agreed to the erection of a fence upon the line of such survey, or to be bound by the results thereof, in so far as it affected the line as shown by an old fence and the boundary as theretofore recognized by the parties and their grantors. This being true, defendant would, at most, have nothing more than a right of action for plaintiff’s breach
The latter case fully covers this proposition, and nothing further need be added, save to say that section 4239 of the Code should also be considered. It reads as follows: “Any lost or disputed corner or boundary may be determined by written agreement of all parties thereby affected, signed and acknowledged by each as required for conveyance of real estate, clearly designating the same, and accompanied by a plat thereof, which shall be recorded as an instrument affecting real estate, and shall be binding upon their heirs, successors and assigns.”
As the agreement, whatever it may have been, was not followed by possession to which plaintiff agreed, the new survey should be eliminated, and with that out of the way there was but one thing to do, and that was to establish the boundary theretofore established by acquiescence and adverse possession.
It should be remembered that this is an action at law; and that upon appeal, the findings of the trial court are conclusive, unless there be no substantial testimony in their support. Viewing the testimony in the most favorable light for plaintiff, we are of opinion that the trial court did not err in rendering judgment for him. — Affirmed.