Bayhouse v. Urquides

• Decision Date: 24 November 1909
• Parties: ANNA BAYHOUSE, Respondent, v. JESUS URQUIDES, Appellant
• Court: Idaho Supreme Court

105 P. 1066

17 Idaho 286

ANNA BAYHOUSE, Respondent, v. JESUS URQUIDES, Appellant

Supreme Court of Idaho

November 24, 1909

ADVERSE POSSESSION-RESURVEY-ACQUIESCENCE IN POSSESSION-ESTABLISHED BOUNDARY LINE-PERMANENT MONUMENTS-IGNORANCE OF TRUE LINE-PAYMENT OF TAXES.

1. The purpose of a resurvey subsequent to taking of title by purchasers and settlers is to ascertain the lines of the original survey and the original boundaries and monuments as established and laid out by the survey under which the parties originally took title.

2. Where the grantor of U. entered into possession of and procured title to a town lot and erected and maintained a division fence between such lot and the adjoining lot, and occupied the ground up to such fence and improved the same and his grantee, U., remained in sole and exclusive possession of such property for a continuous period of forty years, such possession and occupancy constitutes adverse possession, and vests the title to the whole of such inclosure in such occupant.

3. ID.-In such case, where the owner of the adjoining lot and his grantors have, during such period of time, been cognizant of U.'s possession and the existence of such division fence, and have made no objection thereto, and have continuously acquiesced therein, the owner cannot be heard to question U.'s title after a lapse of forty years.

4. Where one enters into the possession of a tract of land and incloses the same, erecting a fence between such tract and the land of an adjoining owner, and continues to maintain such fence and occupy and use the land up to the fence for a period for forty years, with the knowledge and acquiescence of the successive owners of the adjoining land, such occupancy will amount to adverse possession, even though the division fence was erected through mistake as to the true boundary line.

5. Where a fence has constituted a monument between the lots of coterminous owners and has so existed for forty years, such monument establishes the true boundary line between the adjoining premises, and likewise controls the description in the assessment, where such assessment has been made by lot numbers, and the requirement as to the payment of taxes is satisfied by the payment of taxes on the lot with which the disputed tract is inclosed and to which it belongs.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District of the State of Idaho, in and for Ada County. Hon. Fremont Wood Judge.

Action in ejectment and to quiet title to a strip of land about five feet in width. Judgment for plaintiff, and defendant appealed. Reversed.

Reversed and remanded, with directions. Costs awarded in favor of appellant.

A. A Fraser, for Appellant.

The defendant in this case could not be bound by the survey made by the commission, for the reason that none of the parties who made said survey were called to the stand to testify as to its accuracy, and the defendant did not have an opportunity to cross-examine the parties who made the commission survey. The commission was not acting under authority of any act of the legislature, and their proceedings could not be binding on any individual. (5 Cyc. 945; Orena v. City of Santa Barbara, 91 Cal. 621, 28 P. 268; Chapman v. Polack, 70 Cal. 487, 11 P. 768; Martz v. Williams, 67 Ill. 306.)

Under the evidence in this case, the defendant has a good title to all the property inclosed by his said fence by adverse possession. Prior to 1881, payment of taxes was not required in this territory in order that title to property might be acquired by adverse possession. (Brose v. Boise City Ry. & Term. Co., 5 Idaho 694, 51 P. 753.)

Independent of the question of adverse possession, the defendant is entitled to all the property lying east of the said fence, and the said fence is the true boundary line between the property of the plaintiff and defendant, by reason of long acquiescence in said line as a dividing line. (Truett v. Adams, 66 Cal. 218, 5 P. 100; Columbet v. Pacheco, 48 Cal. 397; Cooper v. Vierra, 59 Cal. 283; Johnson v. Brown, 63 Cal. 393; Burris v. Fitch, 76 Cal. 395, 18 P. 864; McNamara v. Seaton, 82 Ill. 498; Palmer v. Dosch, 148 Ind. 10, 47 N.E. 176; Kulas v. McHugh, 114 Iowa 188, 86 N.W. 288; Holloran v. Holloran, 149 Mass. 298, 21 N.E. 374; Tritt v. Hoover, 116 Mich. 4, 74 N.W. 177; Sheets v. Sweeney, 136 Ill. 336, 26 N.E. 648; 5 Cyc. 942; Diehl v. Zanger, 39 Mich. 601; Brown v. Leete, 2 F. 446, 6 Saw. 332; Sneed v. Osborn, 25 Cal. 619; Boyd v. Graves, 4 Wheat. 513, 4 L. ed. 628; Rockwell v. Adams, 7 Cow. 761; McCormick v. Barnum, 10 Wend. 105; Riley v. Griffin, 16 Ga. 141, 60 Am. Dec. 726.) "Long acquiescence in the location of a fence, as a dividing line, estops the parties from controverting the correctness of the location." (Columbet v. Pacheco, 48 Cal. 395; Idaho Land Co. v. Parsons, 3 Idaho 450, 31 P. 791.)

The occupant's right and ownership did not come by virtue of a plat and survey; it came by reason of his possession and occupancy and the improvements that he had placed upon his lot. (Scully v. Squier, 13 Idaho 417, 90 P. 573.)

Hawley, Puckett & Hawley, and Morrison & Pence, for Respondent.

Adverse possession is purely a question of intent, and it must be under a claim of title. (Altscul v. O'Neill, 35 Ore. 202, 58 P. 95.) There is every presumption that occupancy is in subordination to the true title, and if title is claimed adversely, the act of the wrongdoer must be strictly construed and the character of the possession clearly shown. The intention to claim adversely is an essential ingredient. (Prebble v. Maine etc. Ry. Co., 85 Me. 260, 35 Am. St. 366, and note, 27 A. 149, 21 L. R. A. 829; Colvin v. Land Assn., 23 Neb. 75, 8 Am. St. 118, 36 N.W. 361; McDonald v. Fox, 20 Nev. 368, 22 P. 234.)

Occupying land by mistake does not acquire title by adverse possession. (Prebble v. Maine etc. Ry. Co., supra; Watrous v. Morrison, 33 Fla. 261, 39 Am. St. 139, 14 So. 805; Wilson v. Hunter, 59 Ark. 626, 43 Am. St. 63, 28 S.W. 419; Allen v. Reed, 51 Cal. 362.)

The defendant must show, in order to establish title to the land in dispute, that he has paid all the taxes, state, county or municipal, which have been levied and assessed upon the land claimed by him according to law since the passage of sec. 4043, Rev. Codes, in 1881. (Central P. Ry. Co. v. Shackelford, 63 Cal. 261; Southern P. Ry. Co. v. Whitaker, 109 Cal. 268, 41 P. 1083; Brose v. Boise City R. R. T. Co., 5 Idaho 694, 51 P. 753; Swank v. Sweetwater Irr. Co., 15 Idaho 353, 98 P. 297.)

Where the location of the premises intended to be conveyed can be ascertained from the terms used in the instrument of conveyance, neither the acts nor declarations of the parties are admissible to vary the terms thereof. (Truett v. Adams, 66 Cal. 218, 5 P. 96, 100.)

AILSHIE, J., SULLIVAN, C. J. Sullivan, C. J., Stewart, J., and Ailshie, JJ., concurring.

OPINION

AILSHIE, J.

This is an appeal from a judgment quieting the title to a strip of land claimed by two adjoining lot owners. The first objection urged by appellant is against the ruling of the court in admitting in evidence certain exhibits marked "A" and "B," being maps and plats of a survey of the ground in dispute. This survey appears to have been made by one A. M. Ashline, and embraced the north half of block 29 of the original townsite of Boise City. The surveyor testified on the trial as follows: "I made a survey of this property from which the map was drawn. The starting point of the survey was the center of Second street and First street, and prolonged the line from Idaho south to the alley, and used the measurement from First and Second on Main street. I didn't start from a government monument. These points that are in these street centers have all been surveyed and checked by other people and are supposed to be right. I did not start this survey from any government point. . . . I have nothing but the word of somebody else as to the correctness of my initial point. I started from no government corner to make this survey of the property."

It appears from the testimony of another surveyor that about 1891 the city council of Boise appointed some kind of a commission to survey the exterior boundaries of the city in conformity with the government patent that had been issued for the townsite, and that the initial point used by the surveyor, Ashline, had been established by such a commission. The evidence, however, as to the action of the commissioners is not clear, and indeed there is nothing in the record to show that the survey and maps made by them was a correct ascertainment or an attempt to ascertain where the original lines were run and monuments were placed. Judging from the evidence, it seems more probable that such survey was made rather with a view to ascertaining where a correct survey would have in fact placed the lines and monuments of the original government and townsite surveys. It is clear, however, that the parties could not have been bound by any survey, maps, or plats not based and founded upon the survey as originally made and monuments as erected. (Seabrook v. Coos Bay Ice Co., 49 Ore. 237, 89 P. 417; Orena v. City of Santa Barbara, 91 Cal. 621, 28 P. 268.)

The purpose of a resurvey subsequent to the taking of title by purchasers and settlers is to ascertain the lines of the original survey and the original boundaries and monuments as established and laid out by the survey under which the parties originally procured their titles. (Martz v. Williams, 67 Ill. 306.) On such resurvey or re-established boundaries and monuments the question of the correctness of the original survey cannot enter into the matter at all, and is a matter that does not concern the surveyor, and is not a question to be...