179 Iowa 461 | Iowa | 1917
“W. G. Kennedy and John Royer, both sworn, stated that the hedge running west from the corner was set in the line from, the corner, and that the hedge on either side of the road was set just 33 feet from the corner, while the original corner was still standing found the point thus indicated and set tile and stone. Set in 1883 by N. J. Watkins.”
“Found stone. S. K. Bellamy, sworn, stated that F. M. Frush, county surveyor, found the original corner and placed stone on it. Set tile and stone. ' Set in 1883 by N. J. Watkins.”
Nye testified:
“In 1881, Mr. Watkins, the county surveyor, perpetuated certain government corners; and the records indicate he had placed a tile in the road at the southeast corner of Section 1, and also that the half section mark on the half section corner on the south line of Section 1 was established by Frush when he was surveyor. We also found a stone right at the hedge fence on-the west line of the Johnston land. It has the appearance of being a proper corner set by a surveyor. I think it was set by a surveyor. The records do not show anything about there being a
The land of Johnston is the E% SE]4 of Section 12, and the stone at the quarter quarter corner is in the hedge and on the line as claimed by defendant. W. G. Kennedy, nearly SO years old, testified to having been familiar with the two sections since' 1854, and that he resided on Section 6 of the township immediately east; that he broke the ground for the hedge row extending from 33 feet west of the southwest corner of the section; that at that time there was a mound about a foot high, on top of which was a rock set in at the quarter corner to the west; that a line was staked between these corners and the hedge set out by Bellamy, who then owned the land now owned by plaintiff; that Bellamy and the witness’ father hauled the plants, and these were set out in 1859; that he was with Watkins when he marked the quarter corner, and saw him put in three tile, with a stone on top of them, at a point 10 or 12 feet west of the end of the hedge and in line with it; that the owners of the land on each side of the hedge had cultivated up to the same since 1858; that there was a post set where the tile was put in; that he owned the 40 acres south of the hedge from 1873 until conveyed to defendant in 1901; that by arrangement he kept up the division fence to the west of his 40 acres, and Bellamy kept up that north of it.
The evidence discloses without dispute that the plaintiff and his grantors have occupied up to and not beyond the hedge during all the years since it was planted, and that defendant and his grantors have done likewise, and that there has been no controversy concerning the hedge as truly marking the division line until shortly prior to the beginning of this action. True, the son of Bellamy testi
Moreover, the circumstance that Bellamy thought the true line Avas or ought to be farther south tended strongly to confirm the inference of his having acquiesced in the hedge as marking the true boundary. Though knowing, if so, that the hedge was not on the line, lie made no objection to the occupancy and use by defendant and his grantors up to the hedge, as the boundary between their respective farms, and, in addition to marking the line by planting the hedge, for over 40 years occupied and cultivated his farm up to such hedge Avitliout questioning it as marking the true boundary in dealing with the adjoining OAvner. A stronger case of acquiescence is scarcely to be found in the books, and, as the hedge has been acquiesced in as marking the true boundary between the respective tracts of land for the period stated, all parties are bound thereby. Such is the holding of Miller v. Mills County, 111 Iowa 654, and a long line of cases follOAring it, many of Avhieh are found in the briefs. We are of the opinion that the line of the hedge has been so established as the true division line between the respective farms.