167 Iowa 599 | Iowa | 1914
On the 13th day of October, 1899, the plaintiff purchased and still owns a piece of land which is described as follows: The south forty feet of lot 1, in block 9, in Higman’s addition to Sioux City. It appears that immediately after the purchase he took possession, had the same surveyed, and boundary lines pointed out; that thereafter he constructed a dwelling house on the portion of the lot so purchased, sowed the same to blue grass, and planted thereon certain trees; that this portion of lot 1 faced on Pierce street, which runs north and south; that the lot was on the west side of Pierce street facing the street; that, soon after he purchased it, he planted trees' along the south line of his lot, or rather near what he claims to be the south line of his lot; that he has used, cultivated, and occupied the above lot during all of the time since he purchased it, and up to the line now claimed by him. It appears that on the 20th day of October, 1905, the defendant M. E. Brown purchased the north fifty-five feet of lot 2 in the same block; that the north line of the tract purchased by Brown is the south line of the tract owned by the plaintiff; that the defendant M. E. Brown continued to own this north fifty-five feet of lot 2, adjoining plaintiff’s land on the south until December 21, 1912, when he conveyed the same to his wife, Cora Nisbit Brown, the other defendant; that immedi
Plaintiff brings this action against all the defendants, to enjoin them from trespassing on his land in the erection of said building, and prays a decree of court fixing the south boundary line of his premises at the point claimed by him. Plaintiff in his petition alleged that he improved and cultivated his tract of land, erected buildings and planted fruit and shade trees thereon, and marked the southwest corner of his ground by planting an elm tree there, and marked the south boundary line by placing a row of trees along the south line of the tract; that he cultivated, occupied, and held open, public, and notorious possession of his tract up to the boundary line so fixed and established by him; that the owners of the property now claimed by the defendant recognized this as the true boundary of appellant’s property for a period of more than thirteen years; that he occupied it, under actual claim of right, title, and ownership thereto, for the past thir
The plaintiff was called as a witness in his own behalf. He testified as to the facts hereinbefore set out, the fact of purchase, the fact of having his land surveyed at the time of the purchase, the fact of having the lines pointed out to him, the fact of having made actual measurement, and the fact that he planted trees along his south boundary line, a few inches to the north of the line fixed by him. He testified, in substance, as follows:
‘Higman’s addition is platted into quarter blocks, and in order to fix my boundary line I measured this quarter block at least twice, and had an engineer once. This was done about the time I built my house. My father and I also measured it. The party on the north of me seemed to think our measurements were not correct. To be correct, I got a surveyor, and they got a surveyor. It was surveyed, at that time, at least four times. ’ At the time of this survey, I made a permanent mark on my southern boundary line. My measurements and that of the engineer correspond to the inch. We placed a stake at the alley corner. The alley was on the west. I placed also a stake at the southwest comer, near the curb line of Pierce street. I also put a post about six feet high just in from the
He was then asked this question:
‘ To what point % A. To the point of the boundary line as fixed and agreed upon with the owner of the lot to the south and by the survey of the surveyor.’ ‘I never, to my knowledge, claimed to a point beyond the line described in the deed. I have not claimed the present line through mistake or misapprehension of the line. I did not make a mistake.’ ‘I measured and agreed with the owner of the lot on the south as to the line. ’
To the testimony of the plaintiff, as to his talks with McNeil and as to McNeil’s being the owner of this south lot, and as to McNeil’s agreeing to the line claimed by the plain
‘Do you know who at that time actually owned this lot (meaning the lot now owned by defendant) ?’ To which defendants objected as not being the best evidence of the ownership of the lot. ‘A. C. G. McNeil. Q. Do you know? A. I was under the supposition that he did. Q. Do you know whether he did own it at that time? A. No. Q. You say you did not know whether he owned it or not; that you do not know. A. Yes. Q. Who did own it?’ Defendant objects. ‘A. C. G. McNeil owned it.’ Defendants moved to strike the answer out, as not the best evidence. ‘ Q. How did it happen that the record title was in you? A. That I cannot answer. I don’t know. Q. At whose request was it put in your name?’ Objected to as before. ‘A. At C. G. McNeil’s request. When the plaintiff asked for the owner of this lot, I sent him to Mr. McNeil to discuss the matter.’
This is all the plaintiff’s testimony. Thereupon the defendants called one G. Y. Sbeels, who testified that he was a civil engineer; that he made two surveys for the defendant of the north fifty-five feet of block 2; that he made the first survey six or seven years ago in the summer.
I fixed the north line of his land according to my survey. The north line of the fifty-five feet owned by the defendant is the center of the block. There is no alley in that block. My starting point was on- Sixteenth street, and I located the exact center line of the block north and south, and drove an oak stake at each end of the line. Recently I again surveyed the block for the purpose of fixing this line. We found the
Here we set out the plat referred to by the witness.
It was also admitted by the plaintiff:
That one Finley is a competent engineer, and that he will testify as Mr. Skeels has testified.
There is other testimony offered by the defendant; but we do not set it out, as we do not deem it necessary to do so in settling this controversy.
The burden of proof is on the plaintiff to establish the original boundary line between the two lots. He has offered no competent evidence to show that the true line between the
It must be conceded that, in the platting of this addition and in the laying off of lots and numbering them, the line between the lots was fixed at some definite, distinct, ascertainable point; otherwise, there would be no means of distinguishing one lot from another, or of dividing the lots. There could not be lots 1 and 2, unless they were divisible entities. The plaintiff’s deed called for the south forty feet of lot 1. He says in his testimony that it was his intention to occupy only
When I made my measurements, and when I had the land surveyed, it was my intention to fix the line; that is, the line between lots 1 and 2, as it appeared in my deed. I had no intention of claiming anything, except as shown by the survey at the time the survey was made. I never, to my knowledge, made a claim to a point beyond the land described in my deed; i. e., the line between the lots 1 and 2.
We think the following authorities deny to the plaintiff any right to this strip óf land under this claim: Grube v. Wells, 34 Iowa, 148; Mills v. Penny, 74 Iowa, 172; Fisher v. Muecke, 82 Iowa, 547; Goldsborough v. Pidduck, 87 Iowa, 599; Kohl v. Schmidt, 107 Iowa, 550; Miller v. Mills County, 111 Iowa, 658; Lawrence v. Washburn, 119 Iowa, 109; Webster v. Shrine Temple, 141 Iowa, 325; Keller v. Harrison, 151 Iowa, 320. The cases upon this point have been fully reviewed in the last two cases cited above, and the doctrine herein stated adhered to. In Webster v. Shrine Temple Co., it is said:
The plaintiff, testifying as a witness, expressly admits that she never at any time intended to make any claim to the property other than such as belonged to her, and that she claimed up to the alleged boundary because she believed and
In Keller v. Harrison, supra, it is said:
As such possession was under claim to it [the land in controversy] as part of the northwest quarter of section 28, it was held on the former appeal that if this strip was not a portion thereof, but was a part of the northeast quarter of that section, his possession could not have been adverse. Such has been the doctrine of this court since Grube v. Wells, supra.
This doctrine has become so firmly imbedded in the jurisprudence of this state that we do not feel disposed to depart from it, although there are other states holding to a different doctrine.
That if defendant, by himself, employees, or tenants marked by the planting of trees, grove, or other improvements, a visible division line, in good faith believing it to be the true
This quotation purports to be taken from page 394 of 139 Iowa, Keller-Harrison case, but omits this very important part of the quotation:
And during such period the owners of plaintiffs’ land occupied and cultivated their land up to such line, then it will be conclusive.
The portion attempted to be quoted, paraphrased, states that, if the defendant marked, by planting trees, etc., a visible division line, in good faith believing it to be the true boundary line, and occupied his land up to that line, and the other party also occupied and cultivated his land up to such line, thus acquiescing in the line made by the defendant, it will be conclusively presumed that both parties agreed to that as the boundary line, and thereafter neither party can be heard to say that the division line so marked is not the true boundary line. See the same case reported in 151 Iowa, 320.
It is apparent that one party cannot acquiesce in a line created by himself, and bind the other party by his acquiescence, even though he acts in good faith, believing it to be the boundary line. Many definitions of acquiescence are to be found in the books. In Scott v. Jackson, 89 Cal. 258 (26 Pac. 898), we find the following definitions:
Acquiescence is where a person who knows that he is entitled to impeach a transaction or enforce a right neglects to do so for such a length of time that under the circumstances of the case the other party may fairly infer that he has waived or abandoned his right.
Acquiescence is a consent inferred from silence; a tacit encouragement.
See case above.
Acquiescence has been well defined as acquiescence under such circumstances that assent may be reasonábly inferred from it. . . . • Assent' thus given is as irrevocable as if expressly stated in words.
Assent is a necessary inference from acquiescence, and estoppel is generally the necessary consequence of assent.
In Sneed v. Osborn, 25 Cal. 628, the court said:
The acts of the parties might not amount to an agreement between them to locate the tract as then surveyed, and it is unnecessary to consider them in that view; but do they not show an acquiescence by the parties in those lines . . . between the two tracts of land ? If they do show such acquiescence, it will make no difference in the result that they acted in ignorance or under a mistake as to the true northern line. . . . The authorities are abundant to the point that, when the owners of adjoining lands have acquiesced for a considerable time in the location of a division line between their lands, although it may not be the true line according to the calls of their deeds, they are thereafter precluded from saying it is not the true line. The better opinion is that the considerable time mentioned . . . must at least equal the length of time prescribed by the statute of limitations to bar a right of entry.
This decision recognizes the doctrine of acquiescence, and that the line claimed must have been acquiesced in by the parties on the other side of the line. Acquiescence involves more than a mere establishment of a line by one party, and the taking of possession by him. It involves the idea that the other, with knowledge of the line so established and the possession taken, assents thereto, and this may be shown by his conduct, by his words, or even by his silence. There must, however, be something in the record to show that the party, charged with acquiescence, consented to the act of the other in establishing .the line and assuming possession. Acquiescence means a eon-
The great current of authority sustains our conclusion that, in the absence of other controlling circumstances, the' inference is conclusive that the dividing line between adjoining tracts, definitely marked by the erection and maintenance of a fence or other monuments, recognized by the owners of such, and up to which they have occupied and cultivated the land on either side for more than ten years, the statutory period of limitations, is the true boundary between them.
This rule obtains, even though the line thus fixed and recognized and acquiesced in was not, in fact, the true original line, and even though it appeared that the parties, during the time, were in ignorance of or mistaken as to the true line between them. Proof of acquiescence is not proof in all cases of the original boundary line, but the line thus fixed by acquiescence becomes the true boundary line between the parties, without regard to the original; but the line so fixed by the acquiescence of the parties, in the absence of any other proof, is presumed to have been the proper original dividing line. As stated in Klinkner v. Schmidt, 114 Iowa, 699:
We apprehend the distinction between the doctrine of the eases which deny efficacy to an occupancy founded on mistake and those which recognize occupancy to a line established by acquiescence to be this: That in thé one case the assertion of title is presumed to be limited to the premises covered by the grant under which possession is claimed, while in the other case there is a wholly.independent basis for the assertion of title, to wit, acquiescence of the adjoining owner. . . . This acquiescence is not to be presumed from the mere fact of notorious possession by the adverse claimant to a line which
See, also, Palmer v. Osborne, 115 Iowa, 713; Biglow v. Ritter, 131 Iowa, 213.
Upon an examination of the record in this ease, We find that there is no basis for the contention that the defendant Cora Nisbit Brown, or her grantor, Marcus E. Brown, or his grantor, E. P. Leland, ever knew of plaintiff’s contention until the purchase by Brown from Leland, which was in 1905. Prior to that time, the land appears to have been unoccupied by any one. There is nothing to show that Leland ever knew of plaintiff’s claim,' or did anything to indicate that he acquiesced in the same. It does not appear that he resided in Sioux City, or had ever seen the land in controversy. There is no basis for claiming, then, that the Browns or their immediate grantors ever acquiesced in anything that the defendant did in the way of establishing a line. The chain of title from the government does not appear in this record. •
It is contended, however, by the plaintiff, that one C. G. McNeil was the owner at the time plaintiff made his measurements and established his line; that McNeil acquiesced in it, consented to it, and approved of it.; but there is no competent proof of McNeil’s interest or ownership in this land. The plaintiff’s statement that McNeil was the owner of it apparently is based upon what Flanagan said to him. There is no competent evidence that Flanagan had any interest in this land. Plaintiff testified that the property stood in Flanagan’s name. Plaintiff went to Flanagan to ascertain who was the owner of this land. Flanagan told the plaintiff it was McNeil. Flanagan, called as a witness, testified that McNeil owned it. He was asked whether he knew that McNeil owned it, and he
I don’t know how it happened that the record title was in me. "When Griffin asked me for the owner of the property, I sent him to McNeil. I supposed McNeil was the owner.
Evidently he supposed that the property was in his name by McNeil’s request. Something more than the mere supposition of a witness that a certain man is the owner of a certain tract of land is necessary in order to establish ownership in the supposed owner. It does not appear that McNeil was at any time in the line of title. He was not defendant’s grantor. It appears that Flanagan was not the defendant’s grantor. It does not appear that Flanagan knew anything about plaintiff’s claimed line, or that he assented to it. There being no competent evidence that McNeil was the owner of the land at the time plaintiff claims that he acquiesced in the establishment of the line at the point claimed, his acquiescence cannot be considered as binding upon these defendants, if any such acquiescence there was. There is no evidence that Flanagan acquiesced in it. Indeed, he testifies that he had no interest in the lot; that he did not know how the property came to be in his name. See Palmer v. Osborne, 115 Iowa, 714.
It appears that the lot was vacant and unoccupied, and it does not appear that any one, shown to have title to the land in question, during any of the time intervening between the establishment of this line and the beginning of this suit, ever had any knowledge of plaintiff’s line, or his claim, or of his possession, or acquiesced therein, or did any act indicating acquiescence, that would bind these defendants. We think the plaintiff has failed to establish his claim under any of the theories advanced, and that the cause below was rightly determined adverse to him; and it is therefore — Affirmed.