Watson v. Hogan

130 Iowa 350 | Iowa | 1906

Bishop, J.

Plaintiffs and defendant are the owners respectively of adjoining 40 acre tracts of land in Johnson county, plaintiffs owning the north forty and defendant the south forty, and it is the comers to and the boundary line between these tracts that plaintiffs seek to have established in this action. The defendant answered setting up that for more than twenty years the line between the tracts had been marked by a hedge and fence and recognized and acquiesced in as the true boundary line. And she insists that no interference should now be had therewith. Passing the errors, contended for by appellant, having relation to the manner and form of proceeding, we may dispose of the case by saying that on the undisputed facts there should have been judgment for defendant. In brief, these are the facts. In the year 1862, John Dilatush, father of plaintiffs, bought the north forty, and one Grant the south forty. They jointly built a fence between the two tracts, and with the mutual understanding that Grant should keep up the east part and Dilatush the west part. Grant sold to McVey in the year 1869. Shortly thereafter Dilatush set out a hedge, a few feet south of such fence and commencing near the west quarter corner, thence extending east fifty or sixty rods. This seems to have been done by Dilatush on his own motion; there is no evidence of any agreement in relation thereto. However, Dilatush and IVIcVey acting together at once took up the old fence and reset it about six feet south of the hedge, and this was done as testified to by Dilatush to protect the young hedge from cattle. In the course of a few years the fence was taken down and the hedge was connected up at the east end thereof with a wire extending to the west forty line. Thereafter, and without dispute or question, the hedge and fence served to separate the properties; the respective owners cultivated up to the line as thus marked, and MoVey and his grantees, including this defendant, kept up the fence at the east end, in addition to trimming the east part of the hedge, while Dilatush and his grantees, the plaintiffs, trimmed the west part of the hedge and maintained the connection between the same and the north and south line fence on the west. This continued until a short time before the commencement of this action, and, it is to be observed, covered a period of about twenty-five years. Plaintiffs offered the evidence of a surveyor to the effect that the time line was about six feet south' of the hedge, and, in addition to this, sought to show no more than that Dilatush in planting the hedge had purposely avoided setting it on the line.

We may concede, for the purposes of the case, that the true or government line is where claimed by plaintiffs. The evidence of Dilatush as to his secret purpose in setting tSe hedge was objected to as incompetent and'immaterial, and without doubt such objection was good. McVey and his grantees believed the hedge to be the true boundary line, and if Dilatush knew that it was not (a proposition made extremely doubtful by the evidence), it is not, in any event, for him, or plaintiffs claiming under him, to raise the question after the lapse of so many years of silence and acquiescence. The defense interposed by defendant is expressly authorized by the statute, and accordingly we conclude that the case is ruled by Miller v. Mills County, 111 Iowa, 654, and the other like cases decided in this court. The cases are well known to the profession, and we need not 'make further citation. The decree entered by the trial court fixed and established the boundary line in accordance with a survey made at the sole instance of plaintiffs, such line conforming to the contention of plaintiffs, in pleading, and varying from the line of acquiescence about six feet to the south.

It follows, from what we have said, that this was error, and the decree is reversed, and the cause remanded, for a decree in harmony with this opinion.— Reversed.