Bernier v. Preckel
| Decision Date | 21 March 1931 |
| Citation | 236 N.W. 243,60 N.D. 549 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Cass County, Cole, J.
Reversed.
A C. Lacy, for appellants.
Original monument if found or established marks true corner though resurvey might serve different location. Larson v. Viola Twp. (S.D.) 210 N.W. 979.
Boundaries of city lots should not be established at variance with survey which located lines in accordance with recorded plat. Jackson v. Snyder (Iowa) 208 N.W. 321.
Subsequent survey cannot unsettle line fixed by fence, no starting point being given. Pere Marquette R. Co. v. Tower Motor Truck Co. (Mich.) 192 N.W. 634.
The beginning corner of a survey as given in the field notes is of more dignity than any other corner found on the ground. Cocks v. Finks (Tex.) 41 S.W. 95; Davis v Smith, 61 Tex. 21; Milds v. Sherwood (Tex.) 19 S.W. 853.
The fact that a boundary line was fixed by mistake as to the true boundaries and corners makes no difference if the subsequent purchaser purchased with a view to this line. McGee v Stone, 9 Cal. 600.
J. J. Mulready, for respondent.
This action was heretofore before this court and remanded for the taking of further testimony. Bernier v. Preckel, ante, 547, 236 N.W. 242, and was again submitted and argued at the November, 1930, term of this court. It is an action brought under § 8147, Comp. Laws 1913, to determine conflicting claims to real property.
The complaint alleges that the defendants claim certain interest in, or liens or incumbrances adverse to the plaintiff; that they and each of them are wrongfully occupying a portion of the north 11 feet of lot 3, in block 13, in Roberts' Second addition to the city of Fargo, as the same is shown on the certified plat thereof on file and of record.
The defendants deny that they are wrongfully occupying a portion of lot 3; deny that said 11 feet claimed was ever a part of lot 3, and allege that the same is a part of lot 4 and that the line dividing lots 3 and 4 was established for more than twenty years before the commencement of this action, and that the defendants, their ancestors and predecessors and grantors have been continuously seized and possessed thereof for more than twenty years. There is a counterclaim for improvements and a general and specific denial in a reply. The trial judge made findings of fact and conclusions of law for the plaintiff and defendants appeal.
On October 23, 1880, S. G. Roberts and Jennie Roberts, his wife, filed a plat of the second addition of S. G. Roberts to the city of Fargo.
The plaintiff traces title to lot 3 back through a great number of grantors to S. G. Roberts and Jennie Roberts, his wife, owners of the Roberts' second Addition to the city of Fargo. His immediate grantor being Ed. C. Anderson and Lela E. Anderson, his wife, who on the 3rd day of March, 1920, executed and delivered to plaintiff a warranty deed for the south 39 feet of lot 3 in said block, and at the same time they executed and delivered to the plaintiff a quitclaim deed to the north 11 feet of lot 3 in said block.
The defendants claim title to lot 4 of said block 13, back through a great number of grantors to S. G. Roberts and Jennie Roberts, his wife, owner of the said Roberts' Second Addition to the city of Fargo.
Mrs. Starr bought lot 1 in said block on contract in 1897, and got her deed in 1900. Mrs. Starr had her lot, lot 1, surveyed in 1902, and planted trees near the north line at the back end of the lot and they are there yet. Mrs. Starr testified that she remembered the old house that was on lot 4, and the south wing of that house was within 3 or 4 feet of the fence on the north line of lot 3, and that house was there on lot 4, as far back as Mrs. Starr could remember. During the trial Mrs. Starr went with Mr. Lacy and measured lot 1. She found the north line of the lot away north of and beyond where she planted her trees on the lot when she owned it. The lot measured 64.8 feet wide.
Mrs. Margaret Sheridan purchased and lived upon lot 3 in 1899. At that time there were houses on lots 3 and 4 and there was a fence between the two houses which was recognized as the line between the two lots.
Mrs. Charles Whitman lived in the house on lot 4 in 1898. There was a house on lot 3 at the time, and after Mrs. Sheridan purchased lot 3 in 1899, she had lot 3 filled in and graded higher than lot 4, and the wing of the house on lot 4 was within 5 or 6 feet of the grade on lot 3. Mrs. Sheridan set out trees on her lot, a couple of feet inside the grading, and the fence that was between the house on lots 3 and 4 at that time was on the line with the grade on Mrs. Sheridan's lot. Mrs. Whitman occupied the house on lot 4 until Mrs. Preckel purchased lot 4 and moved into the house in 1904.
John Moher lived in the house on lot 4 thirty years before the trial. At that time there were posts with 2 X 4s or boards nailed on top running east and west, and the south wing of lot 4 was within 5 or 6 feet of this fence. There was a barn on lot 3, the north line of the barn was about where the fence was. There was no barn on lot 4, and Moher built a shed barn up against the side of the barn on lot 3.
Mrs. Preckel was familiar with the property since 1900. She entered into a contract for a deed to lot 4 in October, 1904, and moved onto the property immediately after and lived there continuously until 1920. She got a warranty deed to the land in 1909. The little fence between lots 3 and 4 was recognized as the dividing line between the two lots.
Mrs. Sheridan's lot at the time was graded up about 8 inches higher than lot 4, and was graded right up to the fence. Mrs. Sheridan called Mrs. Preckel's attention to a surveyor's stake which was a trifle south from the fence between lots 3 and 4, and also called her attention to trees she had planted on her lot near the fence and named after different members of her family.
Mrs. Preckel had her lot graded up to the fence on the north side and planted an elm close to the fence, which is still there. That house that was on lot 4 at that time was within 4 or 5 feet of the fence. In 1910 Mrs. Preckel moved the house back and made two houses out of it, and built two garages, both of which extend close to the line; and she built a new house on the old site but nearer the center, and not so close to the line. Mrs. Preckel does not know who built the little fence. It was old when she came there. She built a new fence in 1911, in the same place, which is still there. Mrs. Preckel was in continuous possession of all of lot 4 from 1904 until the 15th of November, 1918, when she executed and delivered to William Currie, one of the defendants, a warranty deed to the east 90 ft. of said lot 4, which deed was duly recorded in the office of the register of deeds of Cass County; and Mr. Currie immediately took possession of the said portion of lot 4, up to the dividing line where the fence is and has continuously occupied said 90 ft. of said lot 4, and was occupying it at the time of the trial.
On the 31st of July 1920, Mrs. Preckel executed and delivered to Robert P. Carney and Elsie Carney, his wife, a contract for a deed to the west 25 ft. of said lot 4; and on the 2nd day of August 1920, Mrs. Preckel executed and delivered to Ann Elizabeth Campbell, one of the defendants, a contract for a deed to the east 25 ft. of the west 50 ft. of said lot 4; and all of the defendants took immediate possession of their respective portions of said lot 4 up to the fence which defendants claim to be the dividing line between lots 3 and 4.
C. H. Lucky, a civil engineer, following the original field notes as filed with the plat, surveyed lots 1, 2, 3 and 4 of said block 13, establishing the line of said lots in accordance with the field notes on file with the plat, and in accordance with said survey lots 1, 2 and 3 are 50 ft. wide and 140 ft. long, and lot 4 is 71.15 ft. wide on the east end and 42.61 ft. on the west agreeing with the original survey. He also found that there is a fence and a hedge on the north side of lot 1 as shown on the plat, exhibit 104, which is 15.4 ft. north of the north line of 1 and from the hedge and fence to the south line of lot 1 it is 65.4 ft. There is a fence 15.9 ft. north of the north line of lot 2, running east and west. There is a fence north of the north line of lot 3 (the fence claimed to be the line between lots 3 and 4) at the west end it is 3 ft. and 3 in. north of the north line of lot 3 and on the east it is 4.6 ft. north of the north line of 3.
There was a fence on the south side of the house on lot 3 which was moved 15.9 ft. north of the north line of lot 2 as shown by the plat, exhibit 104, after the plaintiff purchased lot 3. On this plat the red line on the north side of each lot indicates the north boundary of the lot. The black lines indicate fences, now claimed to be the north boundaries of lots 1 and 2. The fence which is claimed to be the north boundary of lot 1 is 65.4 ft. from the south line, making lot 1, 65.4 ft. wide instead of 50 ft. as shown in the original plat on file, and the fence claimed to be the northern boundary of lot 2 which moved north after plaintiff purchased lot 3 is shown to be 15.9 ft. north of the north boundary of lot 2.
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