158 Minn. 53 | Minn. | 1924
This controversy is over the location of a boundary line and the parties are father and son.
The trial court found that plaintiff has been the owner of the southeast quarter of the northwest quarter and the northeast quarter of the southwest quarter of section 36 in township 138 of range 36 for the last 31 years, and that defendant has been the owner of the southwest quarter of the northwest quarter and the northwest quarter of the southwest quarter of the same section for the last 18 years, and further found:
“That the lands of plaintiff and defendant adjoin each other, and that a boundary line between said premises became established between said lands about thirty-one years ago; that a fence was built thereon and along such line so established and during nearly all of said time has been kept and maintained by the respective owners and occupants of said lands, and the true boundary line between plaintiff’s and defendant’s said lands thereby became fixed and established by a practical location thereof.”
Further findings locate this line specifically and definitely.
The question presented is whether the finding that the boundary line has become “fixed and established by a practical location thereof,” is sustained by the evidence.
The controversy arose in consequence of a disagreement between surveyors as to the location of the northwest corner of the section. A surveyor named Morton, who seems to have made the earliest
Section 86 was state school land. Plaintiff purchased his tract from the state and began cultivating it as early as 1891. At that time the adjoining tract on the west, now owned by defendant, was claimed by one Miliama who was cultivating a small portion of it. Plaintiff and Miliama agreed on the boundary line between the two tracts and plaintiff built a fence along this line in 1891. Some 15 years later plaintiff built a new fence.- He placed this new fence two or three rods east of the old fence to correct a mistake made in measuring when he built the old fence. The time when the new fence was built is not fixed with certainty. Some of the witnesses place it as early as 1906; others as late as 1909. Whether the old fence remained until the new fence was built is also in dispute. Plaintiff cultivated the land up to the old fence from 1891 until he built the new fence, and has cultivated it üp to the new fence ever since. If the land adjoining his had been owned by private parties, he would have acquired title by adverse possession to all the land that he now claims. But Miliama, although occupying the adjoining land for a time, never purchased it, and it remained
Defendant purchased his land while at work in another part of the state and did not occupy it himself until 1919. At the time he purchased it, defendant made an arrangement with plaintiff by which he furnished the wire for fencing it and plaintiff furnished the posts and built the fence for the privilege of using it as a pasture. Plaintiff used it as a pasture for some years, after which it seems to have been rented to others until defendant moved upon it himself. Defendant contends that the claim of practical location of the line must fail because plaintiff could gain no rights by adverse user while defendant’s land belonged to the state, nor while occupying it as a pasture under the arrangement between them. We think the facts do not necessarily lead to the conclusion which defendant would draw therefrom.
Plaintiff has occupied and cultivated the land in controversy under a claim of ownership for more than 30 years. Defendant has had full knowledge of plaintiff’s claim from the beginning. It is true that plaintiff could gain no rights by adverse possession as against the state. It is also true that plaintiff will not be permitted to say that his possession of the land which he occupied under an agreement with defendant was adverse to defendant during the time that he so occupied it. But the land here in dispute was not included in the land fenced for defendant by plaintiff and subsequently used as a pasture. Knowing the line which plaintiff