116 Kan. 299 | Kan. | 1924
The opinion of the court was delivered by
The action was one to quiet title. Plaintiff was defeated, and appeals.
The land in controversy is a tract 50 feet wide by 1,825 feet long,
Plaintiff did not testify that he took possession intending to hold up to the right-of-way fence whether or not some one else owned the strip in controversy. On the contrary, he testified he never had wanted any of the land not legally his, and did not want to encroach on the land of anyone else. There are numerous decisions to the effect that possession of land taken and held under belief that a fence marks boundary is not adverse unless the intention be to exercise dominion up to the fence in any event, regardless of true boundary. (Crawford v. Hebrew, 78 Kan. 401, 96 Pac. 348; Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, and cases cited in the opinion; Kinne v. Waggoner, 108 Kan. 814, 819, 197 Pac. 195, and cases cited in the opinion.)
The judgment of the district court is affirmed.