Lake Ex Rel. Benton v. Crosser

582 108, 470, Okla. 197 P. where the rule foregoing ap- For reasons, syllabus announced in the fifth peal hereby dismissed. “To constitute a ‘final order’ in an action, it must be an affecting order a right substantial action, the effect of such order deter- LAKE, for Use and Benefit of BEN mine prevent the action and judg- a TON et al. v. CROSSER et al.

ment.” 21, No. 33121. Feb. 1950. general rule is announced Rehearing April 4, Denied C.J.S., Appeal Error, 115, sec. sub- 2, division as follows: 216 P. 2d 583. appeal “No direct lies from orders concerning the mode of trial of a cause jury as before a or before the court jury they without a unless fall within the terms of permitting statutes appeals from interlocutory or discre- tionary orders. . . .” In Thomas et al. v. Westheimer Daube, 130, 327, Okla. 209 P. court had under ap- consideration an

peal judgment from a rendered district county, court of Carter plaintiffs which the in error had been jury trial; denied a body and in the opinion (87 331) 209 P. the court said: plaintiffs “The in error were entitled jury trial, to a it, demanded by refusing it the deprived them statutory right. a As this case will

have to be reversed and sent back for trial, a necessary new it will not be pass for assignments us on the other of error. occur, If errors did it is likely they not again will occur on a retrial of the case.” Looper Sturdevant, & of Oklahoma In Flannigan the case of v. Lind City, for error. gren, Wis. 100 N.W. Supreme Court of had under Wisconsin Tankersley, Shawnee, for Clarence appeal consideration from an order in error. denying by jury, pointed a trial out DAVISON, while the order denied a C.J. This for is an action right ejectment party quiet substantial demand title to a 35- ing jury, certainly acre land in did not de Pottawatomie county, Oklahoma, action, termine the because Ernest it was still Lake, pending R. the use and the order benefit of was entered. grantees, us, deny Lola E. Benton Gus- matter before the order tava R. Rash. The case was tried to trial affected a substantial jury, resulting judg- right demanding it, a verdict and for defendants. pre facts are determine did action simple present judgment. vent determination, i. e.: the location of the quieting of and the title adjoining line between strip land- to this of land. owners. Rufus said Hicks and his wife conveyed property said Tom Mi- January 3, 1929, On while the owner conveyed chael, who in turn Hermie the of southwest 40 acres in the herein- Crosser, describing of said deeds designated after section of land in said practically the the the county, land same as the Lake, Ernest R. except above-quoted wife, conveyed to one description, there followed Rufus Hicks the: phase “containing acres, five (W 1/2) “West half of the Southwest Hermie Crosser died 1942 leav- less.” in quarter quarter quarter (SW 1/4) of the Southwest ing his and seven who wife children (SW 1/4) of the Southwest are the defendants in this action. Rufus (SW 1/4) eight of (8) possession Hicks went into of this Township (11) North, eleven range two including acre tract of land the 28-foot (2) containing East 5 acres.” strip in and he and his successors title This 5-acre tract was bounded the same at all there- times south by public and west roads, but, occupying were after and still and us- at the time of the conveyance, above strip said at the time the north and east boundaries filed, days were un- this action was four marked. As a witness at trial, short of 15 after the date of the plaintiff testified as follows: plaintiff deed from to Hicks. Mrs. garden Crosser an orchard had “Q. you At the time sold that five strip 8-foot at the time suit acres, was there a fence around the was filed. acres, five separating it from the bal- your forty ance of No; acres? A. we conveyed After the land was to Hicks had Q. establish line. Sir? A. built, nothing fence was was We measured it out put ourselves and it, ques- said or about nor done was it Q. When, fence. now, was that with being tioned reference to the time bought? it was November, until Was it afterwards or before? A. Some- plaintiff when year; maybe next had sur- summer. I don’t survey placed veyed, remember the east Q. about it. At the time that fence and north lines 28 feet inside was built or plaintiff defendants’ fence. The testi- bought, was tell said, any- what was that, time, fied at he told Mrs. thing, at the time it was Well, built. A. tempor- fence Crosser was Q. I sold to That was Rufus Rufus — ary one he wanted moved. Her Yes; Hicks? A. him, I sold to and we testimony nothing he get didn’t want surveyor out shortly filing about it until before suit. there, just got tapeline and meas- ured it off ourselves, 330 feet, and 660 7, 1943, plaintiff December On con- and he wanted to start from the fence veyed to the above-named Benton and line and I wanted to start Rash the entire 40 acres less “five middle road, argued and we acres described half of it, west about any and he said he wouldn’t have room there. . .” southwest the south- . quarter.” west of the southwest The fence was then along built 22, 1943, plaintiff On December had established, so which enclosed a another on Decem- strip ground, approximately 28 feet 31, 1943, ber he filed this action. width, outside the north and east boundary lines of acres, said 5 many reported as sur- There are cases and veyed surveyor dealing short- numerous annotations with the ly before the institution action, of the establishment which was purpose sole adjoining line between land- parol theory of executed either on the irrespective de- owners, of the exact estoppel. Since or of conveyances. scription contained o rights permissive obtained are reasoning use Although dif- varies of John- by prescription in the case main, jurisdictions, these ferent son v. general Whelan conclu- reach the same cases falls bar 1103. The ease at 98 P. 2d general ex- sion. One of two situations subdivision within i. e.: where ists in each of category. one or landowners Here, the defendants’ actively owners do not both of said personally measured remote establishment; in its conveyed estab- the 5-acre marking or of the establishment boundary Plaintiff’s lines. lished the boundary line is the result of the the negatives any of a testimony idea own parties. acquies- of both Mere actions bring part sufficient mistake on distinguishing cence, fea- which Rey- applied in the the rule it within category, ture of the first mentioned supra. case, of The verdict nolds usually period exist for a of time must supported reasonably jury, which was “equal to that fixed of statute evidence, it determined makes Thompson Prop- limitations.” on Real agreed fact erty (Perm. Ed.) Exemplary sec. by them and and marked line located of this of of Mid- class cases are those built the fence was Valley al., R. Co. v. Imler land et the actual should constitute maintained 79, 1067, 130 Okla. 262 P. 69 A.L.R. prop- boundary line between the 1404; Smith, 404, Lewis v. 187 Okla. erties. Flanagan 512, P. 2d Cornelison v. 593, Okla. 180 P. 2d 823. is in- such cases The rule Michigan court stated category The latter above language: groups subdivided into two of namely: First, those wherein both ad- very generally, “It been held has joining agreement owners without has been an honest that when there difficulty as to its effect lines be- boundary what think is the exact neighboring proprietors, tween two they line described in deeds but agreed by parol upon a mis- actually one, location; and, true take is made as to the a certain accordingly with visible have monuments or long acquiesced second, those wherein the exact loca- agreement divisions, is unknown but the owners mutual- dis- in shall not be ly agree on the location of their bound- turbed, although the time has not been ary may vary it pos- to establish an adverse sufficient session.” 433. description conveyances. in their Hamilton, 20 v. Mich. Reynolds Wall, 110, case of v. 181 Okla. 72 P. 2d 113 A.L.R. falls clear- ¿ase in the instant are The facts ly within the first subdivision of this stronger than those in the somewhat category length of time of oc- Michigan here the case above cupation respective of tracts grantor agreement between was individual owners of im-. is there, grantee, it while was between portance. Since there is no persons stood in the relation- who between them that line marked ship In Tif- landowners. boundary, shall constitute nor as- Property (3rd Ed.) fany §655, part sertion on the of one and ac- it is said: quiescence part on the of the other boundary, irrespec- that such line is the infrequently reference is “Not tive of the true location as described location,’ by par- ‘practical to the deeds, permanent in their there is no conveyance, of the ties to a boundary line, establishment of it as a referred to therein. This case, In the Roetzel designation of the expression refers grantee prior the execu- by agreement between line was retaining grantor, the latter cases deed, either tion of by posses- adjoining land, followed case) instant (the case and the Roetzel . . . . therewith sion in accordance on line was marked accepted location Where prior execution to the in, location the true insisting the con- party to the deed regard lapse binding, to the and of time.” without there- clusiveness the other claim of in contained. hereto- very similar situation A line as ac- the case fore before this conclusive, tually marked on the land P. Rusch, Roetzel v. In as effective case, of four the owner 2d 518. In that express- case, it is sustained as the one hotel adjacent constructed town lots time at the intent Be- building two corner lots. In the of the deed. the execution surveyor, mistake of a being cause sub- other, is sustained building feet encroached about parol agreement. sequent executed 1V2 according lots, to the on .the inside necessary is it for the neither case Subsequently, plat town. official expire, of limitation statute the four lots con- common owner the veyed acquiescence alone. in the case of pred- the two inside lots Although to be outside determined Later of one Rusch. ecessor in title application, case conveyed two corner lots Roet- he recognizes quotes Wall, supra, to zel, who, suit as follows: rule in such quiet answer and title. Rusch filed an alleging cross-petition, the encroach- “ practical induced ‘A location seeking ejectment de- and a ment and by will conclude or mistake fraud cross-petition quieting his The cree title. although privies, their expira- days prior to the was filed nine long acquies- may subsequently, from the date of 15 vary cence, to be ascertained ” conveyance. Judgment was for first . . .’ in the deed. course called for holding cross-petitioner, instant in the The rule is in the deeds was conclusive contained excluding testimony to effect descriptions that, in deeds if the in error contention on the with that varied refusing in the trial court erred building, by latter the wall of the requested give certain because of constituted the object- giving instructions, in by in establishment upon time, is ed at the founded reversing owners. argument the law holding court, trial stated is otherwise than as facts upon adopted and relied no merit in in this We find law, contained the case statement of in In the of a re- this contention. absence of Herse et al. v. Mazza instructions, quest for more exhaustive App. wit: 59, 91 N. Y. S. Div. governing harmony with the rules of law, given the trial court ade- those adjoining owners took their “Where fairly points quately covered the conveyances common from a n line he at issue. with reference ground, the deeds located on had based The verdict of describing certain lots tracts location upon judg- competent evidence and block, irrespec- was, in a sustained, thereon should lapse time, binding on the tive of therefore affirmed. claiming those under them.” owners and WELCH, CORN, GIBSON, and JOHN- dispute no as to this intention SON, JJ., concur. ARNOLD, V. J.,C. parties. both The description and LUTTRELL, HALLEY, and O’- deed called for the (W “west 1/2) half NEAL, JJ., dissent. quarter Southwest (SW 1/4) of Southwest (SW 1/4) of the ARNOLD, Y.C.J. (dissenting). My Southwest (SW 1/4) of section dissent to the majority opinion in this eight (8) Township eleven (11) North, case is based what I conceive to range (2) East, containing 5 acres.” be an erroneous conclusion arrived at Both knew that this description called by reasoning premise. from a false rectangular tract in the extreme The opinion, think, I southwest corner cor- of the section. Both rectly classifies knew authorities rectangular on bound- tract 330 feet ary questions into two main width categor- 660 feet length would First, ies: those where the embrace 5 acres, the amount sold and purchased. the adjoining land- There was no mistake on owners but one or part said own- as to where ers do not actively participate rectangular in its tract was They located. in- establishment; second, those tended to where the measure with tapeline establishment or marking rectangular of the bound- extreme ary line is the result of southwest actions corner of the section which parties. of both opinion would concedes contain 5 acres as called the authorities embraced instrument conveyance first classification application executed accepted by the to the facts in this opinion They case. The other. had no as to the then subdivides tion into two effect of classifica- their measurement in estab- lishing classes as First, a boundary line different those wherein both adjoining they which owners both knew would em- any agreement without to its brace land, effect acres of but mistake they what think measurements were made from exact existing line described fence line quar- around the in their deeds but a ter mistake is section a later toas location; second, those where- disclosed to have been 28 feet from in the exact location is unknown the east and north. mutually owners agree Thus loca- made an honest mistake in tion of their though line location of the boundary line on it may vary from two sides of the 5-acre tract. This their conveyances. the exact situation described in the first subdivision the second main majority opinion designates then classification as stated in the majority the second of these two subdivisions premise from which it reasons to its In order to conclusion. make I premise reasoning think plaus- ible false for that the reason second of that these first of subdivi- applicable sions is two in this case, classifications fits the the ma- facts jority opinion goes by disclosed back record the case of than does v. Hamilton, adopted Mich. ma- jority quoted which is application this language: of authori- ties which exemplify classifica- “It has been very held generally, tion will lead to entirely an different that when there has been an honest conclusion than the one reached from difficulty in determining the lines be- premise. classification aas tween two neighboring proprietors, actually agreed have by parol up- The record in this case discloses that on a certain as the true Lake was selling 5 acres of land and one, accordingly Hicks was purchasing 5 acres. There with visible monuments or divisions, fairly his insistence long acquiesced attribute agreement in shall although disturbed, quarter the time sec- not be fence lines around old an to establish has not been sufficient starting point for their meas- tion as the possession.” adverse honest an the 5 acres as urement remote he nor his neither persons mistake and own- four or five In that case rely mis- grantees on such honest can quarter adjacent to a certain lands of the for violation as a take were dissatisfied with section line effect, is, as statute of frauds correctness of that line as delineated majority opinion, holding respective their having run in this surveyor statute having county His section line. establish survey disclosing consid- resulted in opinion majority It is conceded quar- erable variation at one end of Wall, case thereupon the in- ter line correctly P. 2d states parties agreed terested falling to a case the law by his should be the established In that within this second subdivision. proper- line between syllabus paragraph first case the accord- ties and enclosures were reads: placed. years’ acquies- ingly so After 19 adjoining landowners “Where grantee cence in this line a acquiesce long period mutually for a participating of one of those in the es- treating of time in ary line as the bound- surveyor’s tablishment properties, such ac- between their proper section line as the presumption quiescence creates ejectment the action in to recover implied agreement mutual con- an sent or strip of land the dif- small of said line to the establishment ference between old and the new line, the true The decision in lines. that case was presumption may evi- be overcome upon estoppel by acquiescence. based such was found- dence that ed mutual mistake.” The rule announced that court decision, which I think is the rule opinion quotes from in that case here, is contained 243, §194, C. J. paragraph quotation same practical “A induced location not opinion the next fol- par- or mistake will conclude the fraud ties and their lowing sentence. It reads: privies, although subsequently, long acquiescence, “Where the not been transaction has vary merely be ascertained to from the course such as amount to an honest grants attempt for in the called deeds under to determine doubtful prior permitted which the claimed the authorities have not an agreeing line; line run op- but a to stand which would through pure ignorance is mistake and erate as a violation of the statute of practical location, not a even frauds.” silently acquiesced The conclusion arrived at the ma- owner.” opinion jority violates our statute Thompson (Perm. Property my frauds contention the first Ed.) 3300, stated: subdivision of the second main classi- “If the divisional line is well defined premise fication from correct parties parol and known to rights which to determine fixing upon a new and dif- parties say in this action. To Rufus that binding, ferent location is not because Hicks, accepting his deed with parol conveyance it would amount to a particular description expressly con- land, contrary to the Statute veying him, 5 acres of land to intended of Frauds. A definite whose acres, to take than is to as- changed location by parol agreement known cannot be intent, him cribe to a fraudulent in the absence of presumed since fraud is never subsequent possession we must adverse in ac- agree- cordance with the new line. any event, Such this case should. be binding only in case a bound- reversed given of certain instructions because ary subject line has been the of dis- jury objection to the over pute parties and contention exception which in- with the dispute, view to settle jury structions to did advise the not agree upon and settle a line between applicable the rules of law situa- lands, be es- presented. except- The instructions by acquiescence period tablished equal for a ed to are 2-A and are to that fixed Statute as follows: dispute Limitations where there is no about it.” “No. 2-A. You are instructed that dispute There was not between Lake the deed from Lake to Hicks was con- and Hicks as east and north structive notice to Crosser as to the of the 5-acre property being pur- tract. Both exact extent of the chased from Hicks; you intersecting straight knew if find and believe evidence in lines, starting 330 feet east of the this case that said deed did not in- southwest corner of the section and the clude or intend to include the tract starting 660 feet north of said question, your then verdict should be corner, section would enclose the 5 plaintiffs. acres of land described in the deed They Hicks. didn’t know “No. 3. You are instructed if you two lines would be prepon- until find and believe from the derance of the However, measurements evidence in this case were made. wrongfully that lawfully the defendants and un- running these two lines made the possession hold of the land concluding mistake of the fence on petition described in the and sued the west and south sides of the by plaintiffs, sent of the against the will and con- section line, was on the when, plaintiffs, plaintiffs fact, a matter it was disclosed posses- title and should have then by a later this fence line land, your sion of the said verdict was 28 feet inside of the section line. against should be for the applicable This renders language the defendants. quoted which I have from the case of hand, you “On the other do not so Hamilton, supra, v. and which find, or find that at time the de- language is quotation omitted from the purchased fendants majority opinion, wherein that Rufus evidence, Hicks as shown court said: it was the intent of the the tract should be included “Where the transaction has not been purchase by defendants, then such attempt merely as to amount to an honest your verdict should be in favor of the determine a doubtful against plaintiffs.” the agreement permitted authorities have not operate to stand which would In neither of these as a violation of the statute of frauds.” jury given any guidance rule for the effect of the facts and renders the rule an- might which it find from the evidence nounced this court in the case of under rules of law thereto. Wall, supra, and the rule jury liberty was left at to deter- Thomp- announced in 9 C. J. and in mine for itself what the law is son Property, both of which their determination of the facts. The quoted. have been heretofore presented case was not tried nor by prescription Title having been jury theory accomplished expiration statute, fixed our the rule estoppel by áp~ has no For the failure of the trial court plication advising facts disclosed appli- as to the law record. cable and because conflict 3, the 2-A and confusion any re- event judgment be should remanded, with the cause versed Darrough Leo- Brown, & Ball A. grant new trial. directions City, Brougham, all of Oklahoma nard in error. Shipp Robertson, Robinson, & Okla- City,

homa for defendants in error. FEZLER et al. et al. v. MATTSON Day LUTTRELL, J. In this action Fezler, and other residents of Winans 25, 1949. No. 33316. Oct. City, Second Addition to Oklahoma April 4, Rehearing Denied 1950. sought enjoin the defendants Mrs. P. M. Dr. A. Harris 2d 275. M. Mattson and P. using property from residence purposes, said addition for business claiming such use was in violation plat restrictions said addi- permanently tion. The trial court en- making use property of their in said addition for purpose except residential purposes only. appeal. Defendants appears From the record it that Win- ans Second Addition is a addi- small composed city lying of six blocks between Robinson avenue the east west, and Hudson avenue on Twen- Twenty- tieth street on the south and

Third street on the north. It further appears north Twenty-Third immediately street across the street from Winans Addi- Second tion is unrestricted. The defendant P. osteopathic A. Harris carries on an practice in his residence in said addi- tion, and the defendant Mrs. M. M. operates playhouse Mattson for chil- dren as a business in her residential property in addition. plat of Winans Second Addition was filed for record March portion plat That restrictions involved in the instant case reads as “Any person becoming the owner of any lots in said addition shall take and subject hold the same conditions restrictions and reservations to wit: building “First: For all lots the twenty five feet from the shall lot porch on street line and front

Case Details

Case Name: Lake Ex Rel. Benton v. Crosser

Court Name: Supreme Court of Oklahoma

Date Published: Feb 21, 1950

Citation: 216 P.2d 583

Docket Number: 33121

Court Abbreviation: Okla.