York v. HaireYork v. Haire
Thе appellant, Dr. D. C. York, plaintiff below, filed suit in tbe Circuit Court of Calhoun County against Johnny Haire, Rex Haire and Edd Campbell, appellees, for $612.20, actual value of 336 pine trees wrongfully cut from his land, and, in addition, statutory damages were demanded against Johnny Haire and Rex Haire in the amount of $5,040, at the rate of $15 per tree. Thе appellees answered, denying liability and affirmatively set up that Johnny Haire was the owner of the land whеre the trees were cut by adverse possession, and that the trees were cut in good faith.
The record reveals that John Haire, the father of Johnny and Rex Haire, had owned the SW14 of Section 31, Township 12, Range 1 E, sinсe 1925, and that this land was conveyed to Johnny Haire in 1948. The land in question and owned by the appellant is the W% of the SE%> same section, township and range. This land was assessed to Brown Brothers, and on July 6, 1931, was sold to the State for taxes for the year 1930. On February 27, 1939, a forfeited tax land patent was executed to F. O. Brown and through mesne cоnveyances Dr. York acquired the title and became the record owner.
The evidence reveals that there was a fence and a hedge row along the east, and an old road on the north side, and thеse monuments were treated by John Haire and his predecessors in title as his east line between the properties. Through all of the subsequent years from the date of his purchase in 1925 to the time of cutting this timber, he and his suсcessor in title, Johnny Haire, exercised full • ownership over the now disputed land,
Monuments, cоnsisting of the hedge row and the old road 1900, existing for many years—more than ten years before this cutting—were clеarly identified as the line between the properties, the property to the east being the proрerty of Dr. York, and the property to the west being owned by Johnny Haire.
The proof was ample to show thаt John Haire was in full possession of this disputed area when the patent was issued by the State. Neither the pаtentee nor his successors in title made any effort to put Haire off the land. In the meantime, Haire and his sоn, Johnny, who succeeded to the title, continued their possession without interruption until this suit was filed on July 23, 1956, more than sixteen years later.
With like circumstances in the case of Rotenberry, et al. v. Arnold, et ux.,
The appellant assigns a number of errоrs, among them being that the court erred in granting certain instructions, one of which is as follows: “The Court instructs the jury for thе defendants that an agreed and recognized line is just as good and binding as an established line even by Government monuments or surveys;
‘ ‘ Tbe Court further instructs tbe jury for the defendants that if you believe from a preponderance of tbe evidence in tbis case that tbe old hedge row, old fence and east side of tbe old field was tbe agreed and established line in tbis case and that tbe defendants did not cut any timber over said line tben you must find for tbe dеfendants. ’ ’
While tbe word “agreed” perhaps should not have been used, undoubtedly, tbe old hedge row was “reсognized” as tbe line because tbe Haires occupied tbe land up to that line for many years—more than ten. Since there was no attempt to ouster during that time, it must rightfully follow that it was “recognized” as sucb by tbe abutting оwner from bis acquiescence therein. If be acquiesced by bis silence, tbis amounted to a tacit agrеement thereto. Therefore, we do not think that tbe word “agreed” was prejudical. In 8 Am. Jur., Boundaries, Sectiоn 80, it is said: “It is well established that if adjoining landowners occupy tbeir respective premises up to a cеrtain line which they mutually recognize and acquiesce in for a long period of time—usually tbe time prescribed by tbe statute of limitations— they are precluded from claiming that tbe boundary line thus recognized and aсquiesced in is not tbe true one. In other words, sucb recognition of, and acquiescence in, a line as tbe true boundary line, if continued for a sufficient length of time, will afford a conclusive presumption that tbe line thus аcquiesced in is tbe true boundary line.”
Affirmed.