33 Nev. 288 | Nev. | 1910
Lead Opinion
By the Court,
This action was instituted on the 10th day of December, 1907, by the above-named appellants against the respondent to recover possession of a portion of lot 48 in the river front, in the city of Reno, as shown by the original official plat and survey of the town (now city) of Reno. On the 4th day of September, 1901, and for some time prior thereto, the respondent was the owner by title deeds of lots 45, 46, and 47 of said river front, and was the owner of the same continuously from said time down to the institution of this action. On the said 4th day of September, 1901, one C. S. Martin was the owner of said lot 48, and other lots in said river front lying to the east thereof. On the 7th day of May, 1906, the said
It appears from the testimony that on the said 4th day of September, 1901, the said C. S. Martin became aware that the respondent, Ida Robbins, was constructing a building on what was believed by her to be lot 47, the said C. S. Martin, believing that said structure extended over a portion of said lot 48, then owned by him, personally made certain measurements of what he supposed at the time definitely located the dividing line between said lots 47 and 48. From the measurements so made by him at that time, it appeared that the respondent was encroaching upon lot 48 a distance of five feet. The said Martin notified the respondent that her building was extending over his lot 48 a distance of five feet, and requested her to remove the same therefrom. He then set a stake at a point which he claimed to be the dividing line between said lots. The respondent accepted as correct the division line so designated by the said Martin, caused the building which she was then constructing to be moved to the west a distance of five feet, built a fence along the division line as indicated by the said Martin, and proceeded to improve the ground to the west of said line by building a stone wall along the river, and filled in said lot; the improvements so made by her being estimated to be of a value of $1,800. After the said division line was so designated by Martin and acquiesced in by the respondent in September, 1901, no further question was raised as to the correctness of said line until shortly prior to the institution of this action, a period of about six years.
It further appears from the testimony that in locating the boundary line between said lots 47 and 48 the said Martin measured 125 feet westerly from a certain fence, which he supposed, and for many years prior thereto had supposed, marked the boundary line between lots 52 and
From a letter written by the said C. S. Martin of date August 30, 1908, and introduced in evidence without objection, appears what may be regarded as a correct statement of facts, which accounts for the error in locating the dividing line between sáid lots 47 and 48: "I measured with a tapeline 125 feet from what I supposed was the easterly line of lot 52, of the river front, Chinatown lot coming next being No. 53. Now when I purchased said lot 52, also lots 48 and 49 of Contract and Finance Company (C. P. R. R. Co.) their townsite agent, D. H. Haskell, had built a plank fence as a division line between lots 52 and 53, said Haskell at that time being a one-half ow;ner of all of Chinatown: Now when I purchased said lots 48, 49 and 52 from railroad company through its agent, Haskell (now deceased), I did not question for a moment but that the fence he had built as a dividing line between lots 52 and 53 was a correct boundary line. Time rolled on for perhaps over twenty years more, in the meantime I purchased all of Haskell’s interests in Chinatown. In the course of fourteen or fifteen years, more or less, myself and A. H. Manning sold all of Chinatown to F. J. Peck, Charles May, et al., who after becoming owners of Chinatown had a survey made thereof and found that Mr. Haskell had made a mistake as to the dividing line between lots 52 and 53. The survey made by Peck, May and Company established a line twenty, more or less, feet westerly from where Mr. Haskell had his dividing line fence. This shows that Mr. Haskell, being the owner of Chinatown, made a mistake of twenty feet of ground, more or less, not in his favor, but against himself. He used twenty or more feet belonging to Chinatown, Miss Robbins used twenty or more feet belonging to me, her westerly neighbor used twenty or more feet belonging to her, and such has been the case for twenty-three or twenty-four years. ”
Counsel for appellants in their brief contend that this case should be determined in appellants’ favor upon the application of the following rale: "An agreement between adjoining owners establishing a disputed boundary line is generally conclusive upon them and persons claiming under them, but when the intention was to establish the line according to the true boundary and by mistake the parties agreed upon a line which does not conform to such true boundary the line so agreed upon is not conclusive. ”
Conceding, without deciding, that the foregoing is a proper rule in determining the rights of adjoining landowners under a certain state of facts, nevertheless we do not think it is the rule controlling under the facts established in this case. Where, as in this case, a dividing line was established between the property of appellants and respondent by the act of one through whom appellants deraigned title and was acquiesced in by respondent, which was not in fact the true line according to their respective deeds, but in accordance with which they or their grantees occupied their respective lands for a time in excess of that prescribed by the statute of limitations, and immediately after the establishment of such line the respondent makes valuable improvements with reference to such line, on the land supposed to be hers, with the knowledge of the one who established said line, he and his successors in interest are conclusively estopped from questioning it as the true line. (Loustalot v. McKeel, 108 Pac. 707; Horton v. Roghaar, 108 Pac. 21; Kitchen v. Chantland, 130 Iowa, 618, 105 N. W. 367, 8 Am. & Eng. Ann. Cas. 81; Miller v. Mills County, 111 Iowa, 654, 82 N. W. 1040; Pittsburgh Iron Co. v. Lake Superior Iron Co., 118 Mich. 109, 76 N. W. 395; Ernsting v. Gleason, 137 Mo. 594, 39 S. W. 70; Laverty v. Moore, 32 Barb. 347; Corkhill v. Landers, 44 Barb. 218; Adams v. Child, 28 Nev. 169.)
Rehearing
On Petition for Rehearing
By the Court,
A petition for rehearing and a reply thereto have been filed in the above-entitled cause. The reply to the petition admits as true the following statement contained in the petition: "It is undisputably established that at all times after the boundary line was fixed the respondent had and held all ground covered by her conveyances and the ground in dispute belonging to these complainants.”
The foregoing is a statement of a fact not impressed upon the court upon oral argument or in the briefs heretofore made or filed. Upon the contrary, this court accepted as a correct statement of facts the letter of C. S. Martin, of date August 30, 1908, quoted in the opinion heretofore rendered, which letter was admitted in evidence upon the request of one of the parties and the consent of the other party to the action. This letter concludes with the following statement: "This shows that Mr. Haskell, being the owner of Chinatown, made a mistake of twenty feet of ground, more or less, not in his favor, but against himself. He used twenty or more feet belonging to Chinatown, Miss Robbins used twenty or more feet belonging to me, her westerly neighbor twenty or more feet belonging to her, and such has been the case for twenty-three or twenty-four years. ”
Having accepted this statement contained in the said letter of C. S. Martin as a fact, it appeared that the respondent, Ida Robbins, in case plaintiffs and appellants prevailed in the action, would be the loser of twenty feet or more of the aggregate amount of land embraced within her deeds to lots 45, 46, and 47. It now appears from the petition and reply thereto that the statement above quoted in the letter of C. S. Martin is not the fact as established by the record, but that, upon the contrary, the respondent has all of the land embraced
We are still of the opinion that the conclusion reached in our former decision was entirely correct, based upon the facts stated in the decision and then assumed to be true, for under such state of facts the equities were with the respondent. It now being admitted that the said statement contained in the letter of C. S. Martin was an error, and that the record establishes a contrary state of facts, in order that the question may be presented upon the facts as stated in the above quotation from the petition for a rehearing, which are conceded by the respondent to be .true, a rehearing is hereby granted.
It is so ordered.
Dissenting Opinion
dissenting:
Upon the original hearing in this case, the judgment was affirmed. A rehearing was granted upon petition of appellants, for the reason that this court had assumed as true a statement of facts contained in a letter of appellants’ grantor, admitted in evidence without objection. According to this letter, plaintiffs and defendant, and their grantors and predecessors in interest and others owning land on Front Street in the City of Reno both to the east and west of the property described in the deeds of plaintiffs and defendant had for many years been occupying the land upon that street, not in accordance with the true survey, but each respective owner had been occupying about twenty feet of his neighbors’ land to the east, and that this mistake, which applied to the lot owners generally along the street, was due to the mistaken impression that a certain fence several lots easterly of the lots owned
Accepting the statement of facts contained in the letter as true, it appeared that the defendant was occupying no greater amount of land than her deeds called for; that the plaintiffs’ grantor had marked the boundary line as it was supposed to lie between lots 47 and 48, and the defendant had acquiesced in the line so marked and had made valuable improvements with regard to such line. Under the facts so assumed it was held that plaintiffs were estopped from questioning the correctness of the line as so established.
The reply to the petition for a rehearing admitted as true the following statement in the petition for a rehearing:
"It is indisputably established that at all times after the boundary line was fixed the respondent had and held all ground covered by her conveyances and the ground in dispute belonging to these complainants. ”
In the brief filed on rehearing counsel for respondent concede that they made the admission, but in so doing they erred, for, upon making an examination of the record, they find nothing therein upon which to base such an assertion. It is not contended that the admission is not true in fact, but that the record fails to show it. The trial court found as a fact that at the time the said C. S. Martin designated the boundary line between lots 47 and and 48, "and prior thereto, the defendant, Ida Robbins, was the owner of and in possession of lots 45, 46, and 47 of river front, as shown by the official plat of the town (now city) of Reno, Nevada.”
We think the record discloses sufficient evidence to support this finding.
The question of an estoppel of Martin and his grantees and successors in interest to question the boundary established between lots 47 and 48, which this court in its former opinion deemed controlling, does not seem to have been given the consideration by the trial court and coun
The trial court based its decision entirely on adverse possession. The later and better-considered authorities, I think, would support the decision of the trial court were it not for a provision of our statute, as amended in 1887, requiring the adverse claimant to have paid the taxes on the property claimed in addition to the other requisites of an adverse possession. See the extensive note to Edwards v. Flemming, 33 L. R. A. (N. S.) 923, et seq.
Compiled Laws, 3709, provided "that in no case shall adverse possession be considered established, unless it be shown, in addition to the above requirements, that the land has been occupied and claimed for the period of five years, continuously, and that the party or persons, their predecessors, and grantors, have paid all taxes, state, county and municipal, which may have been levied and assessed against said land for the period above mentioned.” (Rev. Laws, 4960.)
In this case it appears from the record that the defendant, Ida Robbins, paid the taxes levied and assessed against lots 45, 46, and 47 only, and that Martin and his successors paid the taxes levied and assessed against lot 48. This being the case, defendant could not, under the express provisions of the statute, acquire title by adverse possession to the portion of lot 48 in controversy. (Woodward v. Farris, 109 Cal. 12; Lucas v. Provines, 130 Cal. 270.)
This case is not one of the class where the boundary line is or was indefinite, uncertain, disputed or controverted and the parties in settlement thereof have agreed upon a dividing line, and have improved their property with reference thereto, but it is a clear case of an agreement upon a line as a boundary between two lots the lines of which were definitely fixed and easily ascertainable, the parties at the time believing that they were fixing the line in its true location, but through the mistake of one or both parties the line was located in a wrong
Defendant must recover, if at all, upon the doctrine of estoppel. As the question was not determined by the trial court, and as this court in its original opinion based its decision upon what now appears to be an erroneous conception of the facts of the case, I think the case should be retried in order that both sides may have an opportunity to present fully such facts as may have a bearing upon such question and that the same may be considered by the trial court and counsel in the light of all such facts.
It would seem from the'record that this case was tried mainly, if not entirely, upon the theory of adverse possession, otherwise some facts in the case which do not seem to be entirely clear from the transcript would have received more attention. For example, the defendant testified that about eleven years prior to the trial she had had made a survey of the lots, but later qualified this by saying that the survey was not made to determine the amount of property she had, but “was made to build a building.” The building referred to was, doubtless, the one designated as the “Montana.” The west line of this building, according to a map introduced in evidence, was exactly on the line between lots 46 and 47. This would seem to indicate that the defendant had knowledge, at the time this building was constructed, of the correct location of the boundaries of her lots. The building was constructed, however, so that it took in the entire width of lot 47 and extended eight or nine feet over on lot 48. The building called the “Mint” joined the “Montana” on the east, and it does not appear that any attention was paid to its location on the ground until Martin concluded
For the reasons stated, I am of the opinion a new trial should be granted.
Rehearing
On Rehearing
By the Court,
Upon further consideration on rehearing, the judgment of district court appealed from, and the decision of the supreme court heretofore rendered will stand affirmed.