13 Neb. 415 | Neb. | 1882
This is an action of ejectment brought by Lewis against Trussel in the district court of Richardson county, to recover possession of thirteen acres of land on the west side of the northeast quarter of sec. 6, town. 3, range 16, in Richardson county. The case was submitted to the court without the intervention of a jury and judgment rendered in favor of Lewis. It appears from the record that in the year 1860 the United States conveyed to Amelia Deroin, a half-breed Indian, the north half of sec. 6, townshij) 3, range 16 east, which contained 295.95 acres. Amelia being a minor, her guardian in 1864 sold and conveyed to one Trowbridge the northeast quarter of section 6, township 3, range 16, and to one Hamsberry the northwest quarter of the section. Trowbridge and Hamsberry entered into possession. Whether the quarter section line running north and south through the section was known at that time or not, does not clearly appear; but Trowbridge and Hamsberry employed the county surveyor and caused a line to be run across said half section at a point equidistant between the east and west lines, and agreed that this should be the division line between them. They also set
The question to be determined is the validity of the agreement between Trowbridge and Hamsberry. There is testimony in the record tending to show that Trowbridge and Hamsberry purchased' the land in question under an agreement with the administrator, that it was to be equally divided. There is also testimony tending to show that the grantees of Hamsberry were in possession more than ten years before being disturbed in the possession, so that a perfect title was acquired by adverse possession.
Whether owners of adjoining lands, having agreed upon a dividing line between them, and built fences upon the line agreed upon, are estopped from changing the line if after-
In the case of Yetzer v. Thoman, 17 Ohio State, 130 it was held that where one of two proprietors respectively of adjoining lands holds actual, continuous, notorious, and exclusive possession up to a certain line, though not originally the true one, for the full period of twenty-one years, the statute of limitations applies in his favor and against the adjoining proprietor, although such mistake may have grown out of the mutual mistake of the parties as to the true line between them.
In McAfferty v. Conover, 7 Id., 99, it was held that where adjoining proprietors under a mutual mistake occupy up to and acquiesce in a line other than a true one for a period less than the limitation fixed by statute, neither party as a general rule is estopped to assert title to the true line. The rule seems to be that if parties by mistake agree upon a line between them, believing it to be the true one, and afterwards the true line is found, the parties will not be estopped to claim to the true line unless the action is barred by the statute, or some equitable ground of estoppel exists. In other words, if a line, not the true one, is agreed upon under a mistake of fact, the parties will not be precluded from making the proper correction and establishing the true line. Where, however, the line is ambiguous and uncertain, if the parties agree upon a line, and mutually
In the case at bar the testimony tends to show that Trowbridge and Hamsberry agreed upon the line established by them for the purpose of dividing the fractional half section into two equal parts, and that the line agreed upon makes an equal division. The division was known to all the subsequent grantees of both parties, and they purchased with reference to the same. This is not a case where a mutual mistake was made as to the true line, but where the paties agreed that the land should be divided evenly without regard to the true line. This, therefore, is not a case calling for correction of a mistake, but rather to sustain an agreement which has been fully executed. We think the testimony fully sustains the agreement, and the line as established by Trowbridge and Hamsberry must be sustained, particularly in view of the fact that there is testimony tending to show that more than ten years elapsed before the validity of the agreement was questioned. The judgment is fully sustained by the evidence, and is affirmed.
Judgment affirmed.