Pickett v. Nelson, 71 Wis. 542

Pickett v. Nelson

71 Wis. 542 | Wis. | 1888

Cassoday, J.

The record is not certified to contain all the evidence. This being so, the facts stated above, and *544taken from the charge, must be treated as verities. At the time of the alleged trespass, the parties to this action were, respectively, the owners of adjoining farms. There was a dispute as to the north and south line between such farms. The plaintiff owned the farm on the west side of the line, and the defendant the farm on the east side of the line. The claims of the respective parties as to the location of-such line at the north end differed some seventeen rods. The Wemple contract with Irion was made November 29, 1867, and called for 174 acres, more or less, and was all on the east side of the line running north and south through the center of the section. Wemple appears to have made some payment on that contract. That contract was surrendered by quitclaim deed from Wemple to Irion, August 9, 1869, in consideration of $200 paid by the latter. There was evidence tending to prove that, in the spring or summer of 1868, the parties all being ignorant as to the true location of the north and south line running through the center of the section, Pickett and Wemple, with the knowledge .and consent of Irion, then owning the legal title subject to such contract, employed a surveyor by the name of West to establish such line for the purpose of building a partition fence thereon; that such surveyor did establish such line with the assistance of Pickett, Wemple, and Irion, the latter carrying the chain; that Wemple and Pickett thereupon respectively built portions of such partition fence upon the line so established; that upon the south half of such established line, and after Wemple had so surrendered, a public highway was laid out, and Pickett and Irion built road fences on their respective sides of such highway; that subsequently, and in the spring of 1871, Irion and Pickett built about ninety rods of such partition fence upon such established line north of such highway, each building one half, and which for several years they respectively maintained. November 23, 1881, the plaintiff obtained the title to the seventy-four acres off the west side of said fractional lots 1, *5455, 6, and 8. The real controversy was whether the east line of the plaintiff’s land prior to such purchase, or, which is the same thing, the west line of the seventy-four acres thus purchased, was the one so located by "West, or a line some seventeen rods west of it at the north end, and coming much nearer to it at the south end, and which appears to have been run by Dodge and Stuntz. Of course, the finding of the one or the other to be the true line would make a corresponding difference in the location of the east line of the seventy-four acres so purchased, which is the partition line here in dispute.

These statements of fact are sufficient to appreciate the exceptions to certain instructions to the jury. At the request of the defendant, the jury were, in effect, told that if they were satisfied from the evidence that the survey made by Dodge and Stuntz correctly established the east-line of the plaintiff’s land according to the government survey, independent of all agreements between the parties, then their verdict must be for the defendant, unless they were further satisfied from the evidence that an express agreement was entered into between Piekett and Irion that they would be bound by the boundary line between the east and west half of section <3 as established by Mr. West; that the mere recognition of the line thus established by West, and the building of the partition fence and road fences as indicated, and the maintenance of the same by the plaintiff and Irion and his grantor until the plaintiff so purchased the seventy-four acres, was not such evidence of an express agreement between the parties as would justify them in finding that such contract was • made. These instructions may well have led the jury to believe that the parties were not bound by the line located by West, unless it was found from the evidence that Pickett and Irion formally entered info an express contract to that effect. This we think was *546misleading. Even an express" contract may be inferred, and hence proved by circumstances. Geary v. Geary, 67 Wis. 248. The mere acquiescence by adjoining owners, through mutual ignorance and mistake, in a supposed dividing line, and the building of a fence thereon, is not conclusive upon the parties. Hass v. Plautz, 56 Wis. 105; Hacker v. Horlemus, 69 Wis. 280. But this does not prevent such parties, when the location of the true line is in dispute or uncertain or knowingly unascertained, from binding themselves by mutual agreement, either alone or through the agency of a surveyor, as to what should constitute the true location of such line. Vosburgh v. Teator, 32 N. Y. 561; Tobey v. Secor, 60 Wis. 310. We do not wish to be understood, however, as holding that parties can only bind themselves, in such cases of disputed, uncertain, or unascertained location, by express contract. On the contrary, we think that where such location is made by the parties concerned with the obvious intention of making it the permanent line between them, and the same is continued by long acquiescence and recognition in the making of permanent improvements, it will be binding upon such parties without any formal agreement. Jackson v. Van Corlaer, 11 Johns. 123; Brown v. Caldwell, 10 Serg. & R. 114, 13 Am. Dec. 662; Beecher v. Parmele, 9 Vt. 352, 31 Am. Dec. 633; George v. Thomas, 67 Am. Dec. 616; Clark v. Tabor, 28 Vt. 222; Blair v. Smith, 16 Mo. 273; Turner v. Baker, 64 Mo. 218; McArthur v. Henry, 35 Tex. 801. In other words, the conclusiveness of such location may, in certain cases, rest upon the doctrine of estoppel in pais, rather than upon contract. Ibid. The same is -true respecting those claiming under such parties. Ibid. This must be so, since the subsequent conveyances to those claiming under Irion should be construed with reference to the actual rightful state of the property at the time they were respectively executed. Whitney v. Robinson, 53 Wis. 309; McMillan v. Wehle, 55 *547Wis. 695. That was ascertainable by extrinsic evidence in aid of such construction. Ibid.

By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.