90 Kan. 655 | Kan. | 1913
This case grows out of a controversy between adjoining landowners concerning the title to a strip of land five feet wide, lying between a quarter-section line, and a line marked by a hedge. Stated in another form, the disputed question is whether the quarter-section line or the hedge constitutes the present boundary between their lands. The trial court made detailed findings, which are not challenged, and are therefore to be regarded as settling the facts of the case.
The plaintiff, John Peterson, has owned and occupied the east half of the southwest quarter of a section of land since 1872. The defendants, William Hollis and Hattie D. Hollis, are the owners of the southeast quarter of the section, subject to the controversy regarding the strip referred to, which is the west five feet of this southeast quarter section, and is claimed by both parties. The plaintiff undertook to build a fence along the east line of this strip, and brought the present action to enjoin the defendants from interfering with it, thus raising the question already stated. The court gave judgment for the defendants, and the plaintiff appeals.
■ In 1872 the then owner of the Hollis quarter, one Goodspeed, set out the hedge referred to, purposely placing it five feet east of, and parallel to, the west line of his land, which had recently been surveyed and was marked by monuments. In 1874 -parts of this hedge had died out. Goodspeed told the plaintiff that if he would aid in resetting and cultivating the hedge, he could have one-half of it, and it should be the line between their lands. The plaintiff accepted the proposition and complied with its conditions. Goodspeed knew where the hedgerow was located with respect to the quarter-section line, but the plaintiff did not know and took no trouble to ascertain whether it corre
Oral agreements between the owners of adjoining lands that a specified line shall constitute their boundary, where the true location is uncertain or disputed, are universally upheld. .The statute of frauds is said not to apply because the contract is not one for the conveyance of real property — it does not involve any transfer of title. It is regarded as a binding acknowledgment on each side that the designated line is in fact the real boundary. That principle can not control the present case, because here an actual change of ownership was intended. Goodspeed knew just how' much land he was undertaking to give. The plaintiff did not know just how much he was to acquire, but he undertsood that in return for his work upon it the hedge was to become the dividing line of the two farms — that he was to own up to the hedge, no matter where the quarter-section line might fun. The author
The present case differs from most — perhaps from all — of those in which the rule referred to has been applied in this: Here there was an independent consideration to support the agreement to cede a part of Good-speed’s land to the plaintiff — the helping to reset and maintain the hedge. This consideration involved a permanent improvement of the premises, and was fully performed.' There is at least room for a plausible argument that these facts render the contract enforceable. The question suggested need not be decided, for we are of the opinion that in any event the plaintiff has acquired title to the strip in controversy by adverse possession for the period of prescription. For more than fifteen years he occupied all the land west of the fence. His purpose was not merely to claim to the quarter-section line, or to the hedge, upon the assumption that it coincided therewith. He claimed title up to the hedge, irrespective of the position of the surveyor’s line. True, the Hollis tract was not occupied for fifteen years by owners who recognized the plaintiff’s claim. For most
“Where adjoining landowners agree as to the boundary line between their lands, and each occupies to such agreed line, the occupancy of one who encroaches on the land of the other is under'a claim of right or ownership so as to render it adverse. . . . When one of two adjoining landowners, without actual knowledge of the true boundary line, takes possession beyond the true boundary line, with the intention to claim the line to which he takes possession as the boundary line, his possession is under a claim of title or ownership so ás to render his possession of the encroachment adverse.” (2 Enc. L. & P. 400, 401.)
“Where the occupation of the land is by a mere mistake, and with no intention on the part of the occupant to claim as his own land which does not belong to him, but he intends to claim only to the true line, wherever it may be, the holding is not adverse. In cases of mistake as to the true line between adjoining lands, the real test as to whether or not a title will be acquired by a holding for the period prescribed by the statute of limitations is the intention of the party holding beyond the true line. It is not merely the existence of a mistake, but the presence or absence of the requisite intention to claim title, that fixes the character of the entry and determines the question of disseizin.” (1 Cyc. 1037.)
The rule that the holding of land up to a fence or other physical barrier is not deemed adverse, where the purpose is to claim only to the true property line, has usually been applied where both the adjoining owners supposed the two lines to coincide. In cases where the effect of possession taken and held up to a barrier has been made to turn upon intent, the contending parties have usually had the same understanding — if there has been a mistake they have shared it. It does not follow that in order for the holding to be
The view that the plaintiff’s possession was adverse deprives purchasers subsequent to the running of the statute of the protection of the recording act. His occupancy gave notice of his title.
The plaintiff having acquired title to all the. land west of the hedge, irrespective of the location of the quarter-section line, could not be devested of it by a survey called to fix the location' of that line. The surveyor’s province was to determine, in case of dispute, the location of the line between the southwest and the southeast quarters of the section. He had no jurisdiction to decide whether the plaintiff had purchased or otherwise acquired any part of the southeast quarter. (Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836.)
The suggestion is made that the remedy of injunction was not available to the plaintiff. The situation is unusual. The controversy was within the jurisdiction of :a court of equity. The facts have been fully found, and it remains only to apply the law to them. The precise form of the action can not now be important.
The judgment is reversed and the cause remanded with directions to render judgment for the plaintiff.