48 Iowa 78 | Iowa | 1878
In Brown v. Cockerell, 33 Ala., 45, it was held, that “if a party occupy up to a certain fence because he believes it to be his line, but having no intention to claim up to the fence if it should be beyond the line, an indispensable element to-adverse possession is wanting. ” In Grube v. Wells, 34 Iowa, 148, it was held that where the defendant’s claim was limited to a lot of a certain number, but his possession extended to and covered a part of an adjacent lot embraced in his inclosure, this did not amount to an adverse possession in the latter. In both these cases it will be observed that the claim of right was not absolute but conditional. In the case at bar, however, a line was established absolutely. It was in no sense conditional or provisional. The Kirkpatricks, it appears, knew that the quarter section was fractional. They must, therefore, be presumed to have known that the government line was some five rods west of the line which they agreed upon. They never intended to respect the government line, for they purchased of Clark and Hamilton respectively, and with reference to a division line which they had established, irrespective of the government line. The defendants then, and those under whom they hold, occupied the land in controversy under an absolute claim. Had they so occupied it for ten years prior to the commencement of the action? We think they had. Prior to 1856 a fence had been built upon the line, which had been agreed upon as the division line. In that year the plaintiff purchased. By agreement between the plaintiff and Samuel Kirkpatrick, who then owned the west eighty, a lane was made between them for a stock road, each
Beversed.