The plaintiffs Nagel have served no brief and are in default on this appeal. On the date set for argument counsel for the defendants moved fоr reversal under Supreme Court Rule 32 (sec. 251.32, Stats.). It lies within the discretion of this court whether to grant such motion. This court is somewhat hesitant to perfunctorily reverse a judgment of a trial court which undoubtedly gave the case careful consideration before entering such judgment. Upon examinаtion of the record on this appeal we have concluded that it is one which should be disposed of on the merits, and not under Supreme Cоurt Rule 32.
The record contains no bill of exceptions and the statement of facts prefacing this opinion has been gleaned from the memorandum opinion and findings of fact of the trial court.
The issue on appeal is whether there are sufficient facts in the record upon which to base a finding as to the location of the boundary line separating the Nagel premises from those owned by the defendants Brebner and Philipsen. If such sufficient facts are found to be present and are undisputed, then this court is in a position to determine the location of such boundаry line. However, if such material facts are in dispute, the proper disposition of the appeal would require that the cause be remanded to the trial court to make the essential finding of fact as to the location of such boundary line.
Appellant defendants contеnd that, because there was mutual acquiescence by the Nagels and Philipsens in the boundary fence separating their respective рroperties for *108 approximately thirteen years, such fence should be held to be the true boundary line.
The annotations on the subject оf establishment of a boundary line by acquiescence, Anno. 69 A. L. R. 1430, 1500, and Anno. 113 A. L. R. 421, 435, disclose that the cases generally hold that, in order to be effective, acquiescence in a boundary line must continue for the period of time required by the statute of limitations for the acquisition of title by adversе possession. In Wisconsin such statutory period is twenty years. Sec. 330.10, Stats.
In the following Wisconsin cases, which have held that acquiescence by аdjoining owners in the location of a fence as establishing the common boundary line of their respective properties was conсlusive as to the location of such line, the fence in each case had stood in the same location for more than twenty years.
Wiese v. Swersinske
(1953),
6 Thоmpson, Real Property (perm, ed.), p. 483, sec. 3301, states:
“The acquiescence or admission of the owner of land, made under a mistake as to his rights, should neither estop nor prejudice him from subsequently enlarging his possession to the limits of his true title, provided no actual adversary possеssion has intervened to defeat his title.”
A Wisconsin case in accord with the above quotation is
Peters v. Reichenbach
(1902),
However, there are exceptions to the general rule, that the fence must have stood for the period of the statute of limitations in order for the acquiescence to be conclusive on the
*109
issue of the location of a boundary line. The cases of
Rottman v. Toft
(1925),
Other fact situations may arise, where a boundary fence may be conclusive upon аdjoining owners as to the location of the boundary line, even though the fence has stood for less than twenty years. One example occurs where the fence is erected by a common owner who then sells the adjoining parcels representing to the purchasers that such fеnce marks the true boundary line.
Thiel v. Damrau
(1954),
We deem that the fаcts in the instant case fall within still a further exception to the general rule. Before Nagel erected the original fence in 1933 he had a survеyor survey his land, and the fence was then built in reliance on such survey. We consider that such evidence, together with the acquiescence оf the Nagels and Brebners for thirteen years in the line as so established, are sufficient to prima facie establish that the fence as so erected marked the true boundary line. There is no competent evidence in the record before us to negate such prima facie showing.
We deem the case of
Baldwin v. Harrelson
(1934),
“It is firmly settled, in our decisions, that a survey of lands intended to locate the boundary between adjoining lands, followed by acquiescence and possession by both adjoining owners to the line thus located, is evidence of the verity of such line; and prima facie establishes same as a true line, without regard to the statute of limitations. Chambless v. Jones,196 Ala. 175 ,71 So. 987 ; Cooper et al. v. Slaughter,175 Ala. 211 ,57 So. 477 ; Oliver v. Oliver,187 Ala. 340 ,65 So. 373 ; Smith v. Bachus et al.,195 Ala. 8 ,70 So. 261 ; Wragg v. Cook,220 Ala. 111 ,124 So. 228 .”
If competent evidence had been introduced in the instant case showing the true boundary line to have been different from that of the original fence line, then the general rule, which requires that the fence must have stood for twenty years, would be applicable. However, the prima facie case *111 made out by the defendants, as to the location of the boundary line betweеn their lands and that of the Nagels, was not so negated. Therefore, the defendants are entitled to judgment upon their counterclaim for the amount of damages found by the trial court, the same being $75.
By the Court, — That part of the judgment appealed from, which dismissed the counterclaim on the merits, is reversed, and cause remanded with directions to enter judgment in behalf of the defendants and against the plaintiffs for $75 together with costs.