89 P. 943 | Idaho | 1907
Lead Opinion
This is a suit brought to determine the boundaries and quiet title to lot 1, section 7, township 10 south of range 17 east, B. M., situated in Cassia county.
A demurrer was interposed to the amended and substituted complaint, to which we shall hereafter refer as the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court, and the plaintiff having elected to stand on his complaint, judgment was entered dismissing his action, from which judgment this appeal is taken.
The complaint is quite voluminous, and we shall state at some length its allegations.
It is first alleged that under and by 'virtue of an act of ' Congress, commonly known as the Carey act, and pursuant to an agreement between the United States and the state of Idaho, a large tract of vacant public land, desert in character, situated in Cassia county, was selected by the state and segregated from the public domain for the purpose of having the same reclaimed under a system of irrigation; that for
The foregoing contains substantially all of the allegations of the complaint, and no doubt contains much matter that it was not absolutely necessary to plead, but contains a statement of the facts and conditions existing as to said township of land, and the one question presented is whether, under the facts alleged, the respondent Reising is estopped from claiming title to said strip of land two hundred and twenty-six feet, wide along the north side of said lot 2, and whether the plaintiff is entitled to have the title to said strip quieted in himself.
It is contended by counsel for appellant that the defendant is estopped from claiming that the line of division between said two lots is other than where they both supposed it to be when they selected their lands and made their purchases, whether that line is where the same was located by the government survey or not, and regardless of whether it is where it was located by the government survey; that the rights of plaintiff and defendant as to the dividing line between them does not depend upon the government survey; and counsel insist that the rule of law which must determine the equities between the parties to this suit is that where two persons purchase adjoining lands with reference to a division line which is accepted by them at the time of purchase, neither can thereafter question the correctness of that line, even though, as a matter of fact, a mistake has been made in locating it.
The allegations of the complaint show that the government monuments had been obliterated and could not be found, and
It is virtually conceded that about the same condition exists throughout said township of land. Roads have been established on the lines established by said private survey; fences have been built according to that survey; trees and orchards have been planted; buildings and other improvements have been constructed all over said township of land in accordance with the lines of said private survey. It appears that the whole township of land has been settled up in the last two or three years, and that this is a suit to test the question whether the people who selected their lands and made purchases in accordance with said private survey shall now be compelled to change everything and conform to some other survey.
If the contention of the respondent is correct, all persons in said township who purchased their lands according to the lines established by said private survey will have the lines of their lands changed, and no doubt many of them will be compelled to change their fences, buildings, orchards, irrigating ditches and other improvements. This certainly is a peculiar ease, and the decision of it will no doubt have a far-reaching effect.
In the case at bar, it appears that the land and water company was interested in the sale of this land, had said private survey made, as the corners and boundaries of the government survey had been obliterated, and that company induced the respondent to purchase said lot 2 and pointed out to him the lines of said private survey as being the lines of said lot and he purchased with that understanding. They thereafter pointed out to the appellant lot 1 with its boundaries as established by said private survey, and he purchased, believing that said boundaries were the correct boundaries of said lot. The respondent assisted the appellant in constructing the division fence between said lots on the line established by said private survey. While it is not alleged that the lines of said private survey were specifically pointed out to’the appellant by the respondent, they each purchased, respectively, lots 1 and 2, in accordance with said private survey, and we think under those facts the respondent is es-topped from claiming a different boundary between said lots to the injury of appellant.
"While it is true that the defendant may not have induced the appellant to -purchase said lot, it is true that they both bought believing that said line was the correct dividing line between the lots and established their improvements thereon with reference thereto. The dividing line fence was built with the acquiescence and the assistance of the respondent. In Heffner et al. v. Downing, 57 Tex. 576, it was held that if a party establishes and marks a boundary to his land without the exercise of proper care in determining the true line, his
It is held in Tyler’s Law of Boundaries, edition of 1874, page 333, that “In a contest of boundary between two parties who have purchased adjoining tracts from a common vendor, the line which their vendor had caused to be run as the dividing line between the two tracts before he sold them will b.e recognized as the dividing line between the parties deriving title from him.”
"While in the case at bar the government, the real vendor, did not point out the boundaries, the land and water company did point out the boundaries, and that company in fact controlled the sale of the land included in said township. They controlled it to this extent: Water had to be purchased from them to irrigate the same and reclaim it from its desert condition. ' The land had' been segregated under the Carey act and the settler was only required to pay fifty cents an acre for the land and twenty-five dollars an acre for water. The Twin Falls Land and Water Company, therefore, controlled the sale of said land, to a large extent, at least, and both the appellant and respondent purchased their lands upon the representations and showing made to them by the agents of that company — at least so far as the boundaries thereof were concerned.
The respondent, no doubt, would have been perfectly satisfied with his boundaries as established by said private survey had not other boundaries given him better land or better advantages; and perhaps the appellant would not have purchased the lot that he did purchase if the respondent had claimed to the boundary that he is now claiming. He, therefpre, encouraged the plaintiff in making said purchase, to the extent that he at that time claimed the boundaries of his lot as made by said private survey.
It is said by Herman on Estoppel, section 419, that ‘ ‘ a man will not be permitted to recover land which he has encouraged another to occupy and improve, even when the encourage
And in section 422, the author states: “When a man has encouraged another to settle oh and improve land and expend money upon it, he will not be permitted afterward to take it from him although he has an older and better title, and acted himself in ignorance of his own right.”
It was held in Galbraith v. Lunsford, 87 Tenn. 89, 9 S. W. 365, 1 L. R. A. 522, that where there is a doubt or ignorance as to the true locality of a line, a parol agreement fixing the line between the adjoining owners is not within the statute of frauds, and where satisfactorily established, will be enforced by the courts, notwithstanding it may afterward be demonstrated that the agreed line was erroneously fixed.
In that case there was acquiescence of parties and the expenditure of money in making permanent improvements with knowledge on the part of both parties. The case of Rowell v. Weinemann, 119 Iowa, 256, 97 Am. St. Rep. 310, 93 N. W. 279, was a case where the plats and field-notes of the government survey differed from lines as actually run and monuments placed by the surveyors on the ground to mark the corners, and it was held that the monuments placed on the ground to mark the corners would control and not the field-notes and plats, and the court in that case said: “On the face of the record it would be most unjust and inequitable to hold that all these corners and boundaries should now be changed to correspond with the plat and field-notes which are clearly shown to be erroneous and incorrect. To do so would mean much more than a mere decree for the plaintiff in this particular case. It would necessitate the relocation of highways, the removal of sehoolhouses and bridges; in fact, an entire rearrangement of fences and improvements over the whole of the north end of the township.”
So in the case at bar, if it be true that this entire township of land has been settled upon and improved in accordance with the lines established by said private survey, it would necessitate the relocation of highways and the removal of improvements and bridges, and would in all probability
In McGee v. Stone, 9 Cal. 600, the court held the fact that such a line was fixed by mistake as to the true boundaries, areas and corners makes no difference as to the subsequent purchaser who purchased with a view to this line.
It was known to both respondent and the appellant that the government survey marks and monuments had been obliterated or could not be found within said township, and that the land was being sold and disposed of under said private survey.
To establish estoppel in cases like the one at bar, it is not necessary to show that there was any intent to mislead, deceive or defraud, and the fact that the line was fixed by mistake makes no difference. The old-time doctrine of estoppel that there must be an intent to deceive or defraud by word, act or deed is not necessary to establish an equitable estoppel. But it is sufficient to establish such estoppel if, as under the facts of this case, the parties purchased their lands under the guidance and direction of the agents of the land and water company, each having full knowledge that the lines by which they purchased had been established by private survey, each having viewed the lands and its boundaries as established by such survey, and purchased supposing that
The judgment must be reversed and the cause remanded, with instructions to overrule the demurrer to the complaint and permit the respondent to answer, in case he desires to do so. If he does not desire to answer, judgment must be entered in favor of the appellant as prayed for in .the complaint.
Costs of this appeal are awarded to appellant.
Concurrence Opinion
Concurring.
I concur in a reversal of the judgment of the lower court. In doing so, however, I have thought it best to make some observations as to my reasons therefor, in view of the position taken by my associate in his opinion herein. I do not think the right of the plaintiff depends upon his invoking the doctrine of estoppel against his adversary; neither can I concur in that broad, and, as it seems to me, too dangerously liberal doctrine of estoppel announced by my associate. In order that a man be estopped from thereafter urging in a court of justice the true facts in his case, it must be made to appear that he has either spoken to or acted toward his adversary in such an unconscionable or deceptive manner as to render it inequitable and unjust to allow him thereafter to tell the real truth in his case and assert what would otherwise be his true rights. I know of no instance in which a man who has acted honestly, fairly and truthfully toward his adversary can or should be precluded from thereafter asserting his rights based upon the facts in his case, irrespective of the loss it may entail upon his adversary.
The ease at bar differs from the ordinary case in this country where lands have been located upon or purchased and title taken in accordance with the government surveys. In all such cases the grantee takes his title with notice and the understanding that his boundaries are wherever the government surveys are established. In this case, however, the parties, while receiving their grant from the general
In such a case, if it should thereafter appear that there was an actual difference between the description as given in the instrument and the physical marks and boundary placed upon the ground, the former would necessarily yield to the latter, and so it is here. The question resolves itself to this: What land did the plaintiff purchase ? Did he purchase the land as marked and bounded by physical monuments upon the surface thereof, or did he buy land to be bounded by an imaginary line that it was represented to him coincided with the actual markings upon the ground? The only thing to be determined in this case is what land the plaintiff purchased, and we answer that question by saying that he purchased the land as it appeared staked and marked and bounded upon the surface thereof when he went upon it, inspected it and purchased it, and that is the land he is entitled now to have, and he should have a decree quieting his title and establishing his right to this specific and identical tract of land. For the foregoing reasons I concur in reversing the order and judgment of the trial court and remanding the cause for further proceedings.