No. 1,698 | Mont. | Dec 10, 1903
prepared the opinion for the court.
Appellant brought this action against respondents to recover possession of a strip of ground about one foot in width and 100 feet in length, lying along the southerly edge of his lot, alleging that the respondents have built a stone wall and fence thereon. Respondent J. B. Hennessy interposed two defenses to the action: Eirst, that he is the own'er of the land in controversy, by virtue of his adverse possession thereof for a period of five years prior to July 1, 1895; and, second, that he built the stone wall and fence upon a line agreed upon as a boundary line between himself and appellant in the latter part of the year 1891.
Appellant and respondent J. B. Hennessy are the owners of contiguous lots, the southerly line of appellant’s lot being the northerly line of respondent’s. The lots are portions of the Banker lode, in Silver Bow county, and face upon Montana street, which runs northerly and southerly in the city of Butte. The parties purchased from, the same grantors; respondent’s deed being dated May 31, 1890, and appellant’s October 20, 1890. Shortly after purchasing his lot, appellant erected a house thereon, and a little later respondent built his house.
About November, 1891, respondent, being desirous of dividing his land from that of appellant by a fence, procured the assistance of a surveyor to locate correctly the dividing line. The survey was made by one McDonald, who drove stakes at the east and west ends of the line located. According to the
The stone wall is about sixty feet in length, and upon this is erected a board fence, which, after leaving the wall, continues to the street line on the west. Prior to' the construction of this wall and fence the space between the two' houses was open. This space has been used by appellant as a passageway to and from the rear part of his lot, and wasi of great convenience to him. The distance between the houses is about four feet. Three surveyors have endeavored to locate the true boundary line between these lots, but no two' of them agree. McD'onald surveyed it prior to the construction of each of the three fences mentioned, and all of his surveys agree, according to respondent’s testimony. Respondent contends that at all times since
Several errors are assigned:
3. Appellant contends that'a verbal agreement between coterminous proprietors of land establishing a line between their respective estates, and that such a line shall become a division line, is invalid, as being within the statute of frauds. This depends altogether upon, the circumstances. In Galbraith v. Lunsford, 87 Tenn. 89" court="Tenn." date_filed="1888-10-18" href="https://app.midpage.ai/document/galbraith-v-lunsford-8298212?utm_source=webapp" opinion_id="8298212">87 Tenn. 89, 1 L. R. A. 522, 9 S. W. 365, the court said: “If, with full knowledge of the true line, another be fixed by verbal agreement, such agreement is within the statute frauds, and consequently void; but, where there is doubt or ignorance as to the true locality of the line, a parol agreement fixing the line Between adjoining.owners is not within the statute, and, where satisfactorily, established, will be enforced by the courts, notwithstanding it may afterwards be demonstrated that the agreed line was erroneously fixed; and such adjustment may be shown as well by circumstances and- recognition, as by direct evidence of a formal agreement, where parties have
“It is well settled that where the owners of contiguous lots by parol agreement mutually establish a dividing line, and thereafter use and occupy their respective tracts according to it for any period of time, such agreement is not within the statute of frauds, and it cannot afterwards be controverted by the parties or their successors in interest. White v. Spreckels, 75 Cal. 610" court="Cal." date_filed="1888-04-26" href="https://app.midpage.ai/document/white-v-spreckels-5443517?utm_source=webapp" opinion_id="5443517">75 Cal. 610, 17 Pac. 715; Helm v. Wilson, 76 Cal. 485, 18 P. 604" court="Cal." date_filed="1888-06-09" href="https://app.midpage.ai/document/helm-v-wilson-5443632?utm_source=webapp" opinion_id="5443632">18 Pac. 604; Blair v. Smith, 16 Mo. 273" court="Mo." date_filed="1852-03-15" href="https://app.midpage.ai/document/blair-v-smith-7998846?utm_source=webapp" opinion_id="7998846">16 Mo. 273; Orr v. Hadley, 36 N. H. 575; Laverty v. Moore, 32 Barb. 347" court="N.Y. Sup. Ct." date_filed="1860-09-10" href="https://app.midpage.ai/document/laverty-v-moore-5459906?utm_source=webapp" opinion_id="5459906">32 Barb. 347; Houston v. Sneed, 15 Tex. 307" court="Tex." date_filed="1855-07-01" href="https://app.midpage.ai/document/houston-v-sneed-4888403?utm_source=webapp" opinion_id="4888403">15 Tex. 307. It is the policy of the law te give stability to such an agreement, because it is the most satisfactory way of determining, the true boundary, and tends to prevent litigation. Houston’s Heirs v. Matthews, 1 Yerg. 118; Fisher v. Bennehoff, 121 Ill. 435, 13 N.E. 150" court="Ill." date_filed="1887-09-26" href="https://app.midpage.ai/document/fisher-v-bennehoff-6963454?utm_source=webapp" opinion_id="6963454">13 N. E. 150.” (Cavanaugh v. Jackson, 91 Cal. 580" court="Cal." date_filed="1891-10-31" href="https://app.midpage.ai/document/cavanaugh-v-jackson-5445573?utm_source=webapp" opinion_id="5445573">91 Cal. 580, 27 Pac. 931.) The above quotations state the law applicable *to this case.
4. Instruction No. 6 is as follows: ’ “The jury are instructed that if you1 find from the evidence, that, at the time the plaintiff anid defendant went into possession of the adjoining lots of land), referred to in the evidence herein, they agreed up [upon] a boundary, line, even though this line was. different from the line shown by the surveyor, and were ignorant of the true survey line, and tbat this line is the one whereon the fence and stone wall are erected, and if you also' find that each party, in making improvements on his premises; acted with reference to said agreed boundary line, and built in accordance therewith,' then and in such event you will find your verdict against the plaintiff and in favor of the defendant. But if the jury find from the evidence that the said stone wall was constructed upon
In discussing this instruction, we are confronted with the question whether, under our statute, a division fence may stand upon the land of adjoining owners, in the absence of an agreement between- them-. At common law, in the absence of such an agreement, one adjoining owner had no right to build his fence beyond his own land. (Warren v. Sabin, 1 Lans. 19.)
Our Section 1301, Civil C'ode> reads as follows-: “Co-ter-minous owners are mutually bound equally to- maintain: (1) The boundaries and monuments between them. (2) The fences between them, unless one of them chooses to- let his land lie without fencing, in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.”
The words “mutually bound to maintain * * * the fences- between them” necessarily suggest that the burden must rest equally upon each, and this burden includes one-half of the ground upon which the fences shall rest. The section would be clearer if it read, “Oo-terminous owners are mutually bound to erect and maintain.” The word “maintain” ordinarily means to- preserve something which is already in existence, but when we consider that, by the use of the words “unless one of them chooses to let his land lie without fencing,” the statute applies to- lands- not fenced, we readily see that it is comprehensive enough, in the light- of the subject-matter, to include the érection as well as the maintenance of fences. This statute, when'passed, was intended to- apply to conditions where lands were largely unfenced. The phrase “unless one of them chooses to let his land lie without fencing” means that one is not bound to maintain a division fence with his neighbor — he may allow
Chief Justice Shaw, in Newell v. Hill, 2 Metc. (Mass.) 180, thus speaks upon this subject: “In, the first place, it is to be considered that the division fence (i. e., the whole of the division fence) is made for their mutual and equal benefit; an'd' therefore, upon the plainest principles of equity, the expense as well as cost of building, as of land to build upon, must be borne by them equally. * * * If it is to be, in all re
We have examined Chapter XIII, Sections 3250-3259, inclusive, Political Code, amended by Act approved March 16, 1901 (Sess. Laws 1901, p. 139 et seq.), and finfi that such sections, if applicable to this case at all, den not conflict with the views herein expressed.
In the case at bar it .appears that, appellant’s land being considerably higher than respondent’s, it is necessary that some fence of a substantial nature.be erected in order to keep the land of appellant from, encroaching upon that of respondent, and also to prevent undesirable drainage from appellant’s, land upon respondent’s.
It is not contended by appellant that the fence erected is unreasonable for the purpose intenlded. If it is, the burden
The court evidently had in mind the correct theory upon the law applicable to agreed boundary lines, and, in the first part of the instruction, properly told the jury that, if the fence and stone wall are erected upon such agreed boundary line, they should find for the defendant. If they are erected “on the boundary line” agreed upon, they a,re properly erected, under the rule above announced.
We must not lose sight of the .fact that the court used the phrase “whereon the fence and stone wall are erected.” The stone 'wall extended in a westerly direction from the northeasterly corner of respondent’s lot but sixty feet. Upon this wall the board fence was erected, and this fence continued in its course westerly to the line of the street. The fence, and not the 'stone wall, is that which divides the space between the two houses, and is that which destroys the passageway, so appellant contends. The board fence, therefore, is the .principal cause of contention. Continuing, the court said, “If the jury -find from the .evidence that the stone wall was constructed upon a line agreed upon by the plaintiff and defendant, and a portion thereof rested upon land belonging to the lot of each,” etc. The court should not have used the. indefinite phrase “a portion thereof,” but-we-cannot see .that any harm resulted from it. If the stone wall was built.upon the line,.a portion of it should rest upon the lot of each.. -Lawfully).-the wall should rest equally upon the lot of each; and. w.e must presume it was lawfully built, in the light of the jury’s verdict. The burden was upon plaintiff to--show; that his land was. encroached upon. He failed to show it to the satisfaction of the jury. The jury evidently found the wall, as well as .the,fence between the houses to be iipon the agreed boundary line. The remainder of the instruction, while not worthy, of .approval, is favorable to plaintiff. The jury were told that if “the hoard fence constructed by the defendant upon.the stone wall is SO' situated as to inclose, the land .upon which the stone .wall rests,, belonging
For the foregoing reasons, we are of the opinion that the judgment and order should be affirmed.
For the reasons given in the foregoing opinion, the judgment and order appealed from) are affirmed. .