156 Iowa 194 | Iowa | 1912
This is an action to quiet title. The land in controversy is all accretion made by. the action of the Missouri river, which bounds it on the west. It all lies south of a line running due west to the river from the southeast corner of section 17, and is between. the river and section 16 and 21. The plaintiffs are the owners of section 17, and the defendants are the owners of those parts of sections 16 and 21 that fronted on the river. Section 17 is a fractional section, consisting of lots 1 and 2. According to the' government survey of 1852, the left bank of the Missouri river is meandered as commencing approximately at what would be the northwest corner of the N. E. ¼ of section 17, running thence diagonally in a southeasterly course, striking the easterly line of section 17 a short distance below what would be the southeast
John Hanthorn became the owner of lot 2 and a part of lot 1 in section 17 in June, 1866, and he owned this land until October 11, 1887, when he sold it to James E. Lyons. Mrs. Eliza J. Hough became the owner of lot 1 in section 16, June 21, 1866; and she retained ownership thereof until July 12, 1892, when she sold it to M. M. Marshall. Thus, from the 29th day of June, 1866, until October 11, 1887, John Hanthorn was the owner of lot 2, in section 17, and Mrs. Hough was the owner of lot 1 in section 16. James E. Lyons conveyed the land in section 17 to Edwin H. Walker and Marshall O. Hamilton in July, 1890 and in September, 1891, Edwin H. Walker conveyed to his minor son, Thomas H. Walker, his undivided one-half interest therein. In April, 1891, Hamil
In the fall of 1874, John Hanthorn and a son of Mrs. Hough located the southeast corner of section 17, and blazed a line from there due west as far as there was growing timber, which was six or seven hundred yards; and Hanthorn, at, that time, stated that the line thus marked was the division line of the accretions to sections 17 and 16. In December, 1883, one Wallace Walker was cutting timber south of the line that had been marked by Han-thorn and young Hough in 1874, and Hough ordered him to stop. A few days later, Hanthorn and Hough agreed to have the line located by a surveyor, which was accordingly done; and it was found .to be where they had themselves located it in 1874. The line was re-marked on trees, and corner stones were placed at both ends thereof. The line thus marked was open and visible when, in 1892, or 1893, a fence was placed there, which has since marked the division line. James F. Lyons, who was then t]ie owner of the west half of lot 1 in 17, was present a part of the time while the survey of 1883 was being made. In 1887 the treasurer of Pottawattamie county sold the accretion land south of this line for the taxes of 1885-86, to James F. Lyons for the sum of $20.72; the tax certificate
We shall not attempt to determine this branch of the case, for the reason that we are of the opinion that a division line was agreed upon as early as 1874, and reaffirmed in 1883, and because the parties in interest acquiesced in the present line for a period of more than ten years. And, in this ' connection, we should say that' the appellees do not rely upon title by adverse possession, so that question is not before us. There is no question but what the land lying west of the meander line of sections 16 and 17 was accretion; and if a part thereof was believed to be properly accretion to section 16 the owners of the land in place to which the accretion belonged could undoubtedly establish the line between their accreted interests by agreement, or by acquiescence. The situation is, of course, a little different from that where a line between two surveyed tracts is in dispute, but the law of accretion gives to each riparian owner a part, at least, of the whole body accumulated by his own and the adjoining land; and where there is such an increase it is entirely competent
It is true that neither of these parties made valuable improvements on any of this land; and it is also true that their possession thereof was not such as would ordinarily follow where the land was under cultivation. But they were both in possession, to some extent nevertheless; and we think such possession was sufficient for the purposes of this case. A person may be in possession of land without a personal representative thereon, or without having personally cultivated or improved it. Barstow v. Newman, 34 Cal. 90. Possession of land may be acquired and held in different ways; and the possession is sufficient if it is such as to clearly indicate an appropriation by
The primary purpose of possession, is to notify the community or neighborhood that it is- in the exclusive use and enjoyment of the person so appropriating the land. Here there was no question made as to possession or the right of possession until after the plaintiff’s purchase in 1901; and at that time and for years before the land was cultivated. So far, then, as possession may be necessary to perfect an oral agreement establishing a division line, every element thereof was present 'in this case when plaintiffs became the owners of section 17 in 1901.