*1 his custody is entitled to natural parent and grandparents so, them, and has to do desires to care for he is able children have no We to have them. an unfit person found to be not been The decisions. foregoing in the rule announced with the quarrel applies is that such rule trouble, standpoint, from appellant's the parents the trial court is whether the sole issue before cases where children and has are entitled to of minor custody or the grandparents are parents contending to a case where both application that a father has have never held whose home custody. We entitled to of his custody been broken and who is otherwise because the custody simply exigencies child can be of that deprived him to the home of his making living compel keep parents its discretion when —as here —it requires or that a trial court abuses court deems it him it there so as such to be to the best to keep that that be done. interest of the child is affirmed.

The 38,211

No. Fyler Fyler, Appellees, v. B. B. Hannah Hartness L. M. J. Hartness, Appellants. and Lillian 751)

(229 P. 2d Opinion filed April 1951. argued cause, Shaffer, Hutchinson, Weinlood, and Don Abraham appellants. for the

Hutchinson, him on the briefs with cause, Wyman, Hutchinson, argued the and Don of Hutch- Wyman, of Max appellees. for the inson, him the briefs delivered by court was opinion out of a be- dispute appeal grows This Price, J.: *2 of the lot line in Hutchinson over the location tween two neighbors From judgment quieting residential a properties. between their interfering to and defendants from with enjoining title and of the defend- property dispute, their enjoyment ants have appealed. of lot 21 of the of the west ten feet and all

Plaintiffs are owners 27. Lot 25 lot 23. are the of lots 25 and ad- owners of lot the of the east several feet joints ownership 23 on west. The lot 25 is in dispute. 25, the of lots 23 and

Back in 1888 one Lentz became owner and built houses He erected a fence them. two thereon. between Plaintiffs’ as it The fence house now stands was built. has just been original maintained in its location over Down sixty years. owners, the the number years lot 23 hands of a passed through 1930, and In April, the same is true of lot 25. plaintiffs purchased the west ten feet of lot all of lot the including house thereon, Loucks, owner, from one then moved and onto the lots 25 property. 1933 defendants moved onto and as renters, house, and continued to live in the which appears to be on lot until when lots they purchased both and the house owners, from the then Pursel. Thereafter Clayton continued to No occupy owners. propérty question con- cerning location the fence between lots 23 and 25 was ever raised until when defendants had a discussion with their to the west about the neighbors repair of a fence between their a properties. As result of this discussion defendants a caused survey to be made to determine the location proper of the fence on the of their west side From property. this survey developed fence, supposedly lots owned defendants, respectively, was feet west of 5-6/10 the true line. Another made survey was which showed the fence to be approximately feet west true line between lots 4-9/10 and 25. Assuming these to be surveys substantially correct, it was then established that the house of was approximately three feet line on across the and that the water line to plaintiffs’ house was approximately two feet across the line on lot 25. A dis- pute arose between the parties, defendants tore down the fence this question lawsuit. —hence effect: following wás to the The evidence in behalf testified that he was his parents A son of with Loucks; they went upon and examined the shown where was, line; that the water line was namely, put within made, year objection before the was with no defendants; that his had parents always occupied property up fence; that defendants had flowers always planted along since they west side of the fence ever had lots occupied that in 1946 the fence repaired by plaintiffs without defendants; that no had objection controversy ever arisen be- made; until the survey tween and that according to measurements made by the witness defendants still had sixty feet of ground being thirty feet in (the width even each) the fence fine as the taking true boundary. witness,

Another Loucks, sister-in-law plaintiffs’ grantor testified that she was familiar properties years past; that a fence had always been maintained in location, its present *3 that plaintiffs’ grantor had always kept the fence when he lived in the property.

A workman who had replaced fence for in testified that there was no remonstrance from anyone about its lo- cation at the time he did the work. witness,

Still another who in 1922 lived in the house occu- now pied by plaintiffs and in 1923 lived the property now occupied by defendants, testified as to fence being its location present at that time and that it was considered to be the boundary line between the properties.

An affidavit of the wife of plaintiffs’ grantor wás introduced in evi- dence, and the substance it was that in when her husband acquired property now owned by plaintiffs, a fence was main- location; tained in its present that it was represented to her and her husband that it was on the west line of the property they were purchasing; that they claimed the fence it; and all ground east of that when she and her husband sold the plaintiffs all of them went upon the premises; that the fence was pointed out to plaintiffs being west boundary fine of the property plain- tiffs were purchasing; and that affiant and her husband told plain- tiffs would the ground own extending forty feet east of the fence line.

In addition thereto plaintiffs introduced records of the office court, of the district and clerk deeds, probate

it failed to constituting as to the established; no agreement that had been shown; that the most evi- line had been boundary of all understanding had been the that it merely dence showed line, but that true the fence was the concerned that mutual mistake and therefore the result of understanding meaning within adverse possession to constitute insufficient the law. reserved; whereupon pro- on the demurrer was

Ruling their evidence. ceeded with testimony of defendants was evidence on behalf defendant, he owned Hartness, that he testified

Mr. vacant; he that his house was on lot that renter there as a in about but had lived bought it; he had discussed that years purchasing before for some twelve survey, to have a told them he intended plaintiffs, the matter with footage enough sell them he him if would that asked develop it should the event house in so as to clear their in the affirma- house; he replied that ran further testified made. He had the he tive and afterwards fence in put up new when protest he had made installed; asked had never a water had fence; the fact recognized plaintiffs planted to move occupied everything up dispute now strip garden side, and admitted that he didn’t know on their didn’t about it over a inquire period true line was and never claimed the until strip dispute and that he had of years, survey. after the *4 that requested does not show either side the court

The record law, fact or of as provided by to make conclusions of G. S. 60-2921, are certain journal entry judgment findings but denominated as such. The court found the and conclusions facts accord substantially with the above summary to be of the evi- dence, and further found: conclusively That the evidence “Fourth. shows that there has been a fence always

upon place boundary which has been considered the line between probably lots since before since these two 1888 when the first fences erected thereon.” were its this is appeal concerned) for conclusions law (insofar

held: “FIRST. That when the this in 1930 from pieces ground they purchased

the owner of both all of the that including standing the fence as it then and that the are en- quieted titled to have their title much of Lot 25 as to all of Lot 23 and so permanent injunction against extends to the fence line and a interfering enjoyment with their thereof.” of fact to the effect moved additional conclusions contained in the deeds to all concerned descriptions parties and their respective refer to lot numbers in unam- predecessors biguous and certain true line language; that a between lots line; 25 has been a fixed ascertainable that both always and their respective always in title had assumed and predecessors believed the fence in on the true fine question was between such lots until time of the but that such assumption mistake; and belief any and that there had never been agree- ment between the or respective predecessors in title that the fence should be as the regarded boundary be- tween the lots regardless of where the true line actually existed.

Defendants further moved the court to set aside its conclusion of law and to find that had failed to establish their claim under the doctrine of adverse of the possession, agreement parties, or by estoppel.

These motions were overruled and judgment was entered in favor of in accordance conclusion of law above set out. error,

While defendants’ specifications of some of which refer to trial errors such as alleged pertain evidence, admissibility number, yet are sixteen from their brief and oral argument it is that for a clear reliance reversal of this based chiefly the fact there was no upon find, the court did not right recovery was based on adverse possession, parties, estoppel. agreement hand, plaintiffs,

On the other while conceding force of de- fendants’ based on the argument long-established rule that ad- are not jacent estopped landowners to dispute of a accuracy line which mistake have such, treated as occupancy beyond and that boundary line as the result of form a mistake does not basis for adverse possession unless *5 54 claim and hold ad- intention to encroachment is made with

such contend 195), Kan. 197 Pac. Waggoner, v. versely (Kinne an between agreement showed clearly that here in title their parties respective predecessors between was the years had been in existence down fence which they rely properties, Blanford 1030; Jones, Biven, Baker v. 141 Kan. v. 123 Kan. 254 Pac. 830; 346; v. 112 Kan. Schlender Leigh, 40 P. 2d Pac. Shafer Maretoli, 993; v. 140 Kan. 37 P. 2d Howell v. 129 Kan. Kelly, Atkinson, and the case of Sheldon v. early 283 Pac. 14, 16 Pac. of their support position. Kan. case, the facts of are somewhat supra, the Schlender which bar, in the case at it to those was held:

analogous parties lots, purchase adjoining at two different times which are “Where separately by conveyed description by only, to them other than number they separate fence, at the time there exists become owners a considered regarded by being dividing both as on or near the line between the lots, agreement and there evidenc of later between the two owners that existing accepted regarded by being fence shall be as on the them line, dividing although may exactly line, not be such fence correct dividing agree- and is the true becomes between the lots virtue of such subsequent survey ment even if a should establish a line.” different (Syl.) us, that rule to the Applying facts before we think lower court’s was correct. Notwithstanding description contained in each of the conveyances under (by number) which the became the owners of these there was properties, defendants, evidence to ample establish that both plaintiffs and purchasing, recognized the fence in question boundary line between lots 23 and 25. Defendants knew the fence there; knew that plaintiffs fence, claimed all footage they and when purchased their property defendants did certainly not consider were purchasing any the house occupied it is plaintiffs. While true there was no direct evidence of a definite and specific agreement between the parties that the fence line was the true boundary, regardless of what a survey would be, actually show it to yet we think whole, taken as a shows, clearly such agreement circumstantially, same is true of their predecessors in title down through the years. Roth satisfied, parties were and recognized and understood to the fence. purchasing con- in its complaint note of defendants’ we take

In passing, that it found indicates language the court’s of law clusion *6 prop- of pieces of “both from owner their is no basis in when there meaning lots erty,” in this respect think defendants’ contention We finding. for such a from parties purchased It not claimed is erroneous. was the court’s language understand the in common and we grantor, grantor to mean that owned both lots 21 plaintiff’s conclusion than 23 and 25. We examined and considered rather have find by all contentions made defendants but them to be with- other out merit. find nothing substantial We this record approaching reversible error. conclusion,

In hold that we of finding the lower substantial, evidence, are based upon competent and such case, not be disturbed will appeal. judgment of is therefore lower court affirmed. I am (dissenting): unable to agree the holding of Price, J. the court in this I case. As read this record there is one con- clusion to be from drawn namely, the parties simply occupied respective to properties up mistaken that it belief was on the true and correct boundary line between lots and 25. While it true that defendants acquiesced in such occupancy by plaintiffs, yet I do not think such mere case, acquiescence, under facts of this can be to held constitute an agreement between parties that the fence was the dividing line between their properties.

In rendering judgment for plaintiffs the trial court did not base its holding upon any specific ground, such as adverse possession, agreement of the or parties, but, estoppel; it seems clear to me that reasoning the court’s must have been based upon one or all three of those I grounds. have already indicated that I think there was a of total lack evidence so as to work an estoppel either by agree- ment of the or acquiescence on the of And, defendants. with reference to possession, adverse the rule in this state is well- In a very settled. recent case (Wilson Ze, v. Pum 167 Kan. P. 2d 723), which many our earlier authorities reviewed, it held: was proposition "Many court have settled the of this decisions other mis- opposition possession holder, title

taken unintentional con- inadvertence, ignorance period not will time tinued a over by prescription.” ripen possession into title adverse as will constitute such (p. 33.) Paulk, 162 Kan. Craig In v. quoted that decision we it said: 176 P. 2d where was possession “Ownership land cannot be established adverse

occupancy taken continued under mistake as to true land to a certain line is shown claim the and where clear intention (Syl. 4.) boundary.” regardless line is the whether such correct Babb, 2d stated: v. 148 Kan. P. Steinbruck period “Open, occupancy strip of a land and exclusive for the notorious required limitations, under mistaken belief that the the statute of landowners, adjoining between the is not suffi- constituted the hostile, proof but there must be or a cient to make the adverse or intent to claim title and of such inference an unconditional notice conclusive (Syl. 1.) acquiescence hostile therein.” intent me this is situation where the so here. To simply And *7 fence as the years regarded over a period of all concerned. I find of a mistaken belief account plaintiffs occupied to indicate that all footage in the record nothing hostile intention to claim any everything clear the fence with was on true and cor- regardless whether mistaken and simply rect Both mistake boundary. made. survey was For the known until the reasons stated was not must be I feel lower reversed. in the join foregoing JJ., dissenting opinion. Parker, Wedell