Bernier v. Preckel
Decision Date | 30 November 1925 |
Docket Number | No. 5024.,5024. |
Citation | 60 N.D. 547,236 N.W. 242 |
Parties | BERNIER v. PRECKEL et al. |
Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
There is but one question of fact in this case, and the evidence thereon being unsatisfactory, the case is remanded for the taking of further testimony as stated in the opinion.
Appeal from District Court, Cass County; A. T. Cole, Judge.
Action by Alcide Bernier against Pauline B. Preckel and others. Judgment for the plaintiff, and the defendants appeal.
Case remanded to the trial court with directions.
See also 236 N. W. 243.
A. C. Lacy, of Fargo, for appellants.
J. J. Mulready, of Fargo, for respondent.
This is an action to determine adverse claims to 11 feet of land in block 13 in Roberts' Second addition to the city of Fargo, N. D. It is the contention of the plaintiff that the defendants have taken and are, and have been, using the north 11 feet of lot 3 in block 13 and that the plaintiff is the sole owner of all of lot 3 in said block.
It is the contention of the defendants that on the 10th day of May, 1880, and on the 2d day of June, 1880, Roberts' Second addition to the city of Fargo was surveyed and platted and that according to the plat filed the 11-foot strip in dispute is not a part of said lot 3; but the same is a part of lot 4, in said block, and has been recognized as a part of said lot 4 for more than twenty years, as shown and indicated by a line fence between lots 3 and 4.
It is admitted that the 11 feet in dispute is on the north side of the fence which defendants claim to be the line between lots 3 and 4.
The plat introduced in evidence shows that lots 1, 2, and 3 are each 50 feet in width by 140 feet long, and lot 4 is 71.15 feet in width on the east and tapers to 47 feet at the west end.
Mrs. Starr, a witness for the defendants, testified: “That she purchased lot 1 at the east end of said block in 1900-that it was a 50 ft. lot-she had it surveyed; she and her husband planted a box elder tree a foot south of the dividing line running east and west between lots one and two, that the tree is still there; she subsequently sold the lot but on the morning of the trial she went with others and measured lot one with a yard stick and that it measured sixty four feet and eight inches; that a hedge had been planted north of lot one which included in lot one, all of the land between the hedge and the south side of the lot; that the lot was measured on three different occasions.”
The hedge...
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