Brown v. Brown

• Decision Date: 21 June 1910
• Citation: 110 P. 269,18 Idaho 345
• Parties: OTIS BROWN et al., Respondents, v. E. B. BROWN, Appellant
• Court: Idaho Supreme Court

110 P. 269

18 Idaho 345

OTIS BROWN et al., Respondents, v. E. B. BROWN, Appellant

Supreme Court of Idaho

June 21, 1910

BOUNDARY LINE-HOW ESTABLISHED-TITLE BY ADVERSE POSSESSION-EVIDENCE-INSUFFICIENCY OF-FINDINGS OF FACT-ACQUIESCENCE.

(Syllabus by the court.)

1. Under the provisions of sec. 4043, Rev. Codes, to obtain title by adverse possession, the land is deemed to have been possessed and occupied in the following cases, only: "1. Where it has been protected by a substantial inclosure; 2. Where it has been usually cultivated or improved. Provided however, That in no case shall adverse possession be considered established under the provisions of any sections of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land according to law."

2. Held, that the evidence in this case is not sufficient to support the findings of fact to the effect that the division line fence has been regarded by all of the parties concerned or interested in said boundary line as the true and correct boundary line and acquiesced in as the true and correct boundary line

3. Held, that the facts of this case do not bring it within the rule laid down in the case of Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066.

4. Acquiescence in the maintenance of a line fence for a great length of time may be presumptive evidence of an agreement as to a boundary line, but is not conclusive evidence, and will not overcome a positive agreement or understanding that after the true line is established, the fence will be made to conform to it.

5. Where one seeks to procure title to another person's land under the rule of long acquiescence or adverse possession, he must establish his right by clear and satisfactory evidence.

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

Action to quiet title to real estate. Judgment for plaintiffs. Reversed.

Reversed and remanded, with costs in favor of appellant.

Good &amp Adams, for Appellant.

The evidence in this case shows that the possession of the plaintiff and her grantors was by agreement and under license and permission of the defendant's predecessors in interest and grantors, and it matters not whether the same stood on the line forty years or any number of years, the title of plaintiff could not ripen, as against the defendant and his grantors, into a prescriptive title. (1 Cyc. 1030; Jensen v. Hunter (Cal.), 41 P. 14; Nieto v Carpenter, 21 Cal. 455.)

Where owners of adjacent tracts, being ignorant of the location of the true line, occupy up to a line which they agree is merely provisional and to continue only until the true line is thereafter determined, neither can acquire title to any land not within the true line. (Peters v. Gracia, 110 Cal. 89, 42 P. 455; Calanchina v. Bransteter, 84 Cal. 249, 24 P. 149; Quinn v. Windmiller, 67 Cal. 461, 8 P. 14; Irvine v. Adler, 44 Cal. 559; McNamee v. Moreland, 26 Iowa 96; Bunce v. Bidwell, 43 Mich. 542, 5 N.W. 1023; Bryson v. Slagle, 44 N.C. 449; Lowe v. Cunningham (Tenn. Ch.), 39 S.W. 1052; Thompson v. Slater (Tex. Civ. App.), 34 S.W. 357; Russell v. Maloney, 39 Vt. 579, 94 Am. Dec. 358.)

For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied only in the cases specified in sec. 4043, Rev. Codes. (Brose v. Boise City R. etc. Co., 5 Idaho 694, 51 P. 753; Central P. R. Co. v. Shackelford, 63 Cal. 261; S. P. R. Co. v. Whitaker, 109 Cal. 268, 41 P. 1083; Swank v. Sweetwater Irr. Co., 15 Idaho 353, 98 P. 297; Green v. Christie, 4 Idaho 438, 40 P. 54; Little v. Crawford, 13 Idaho 146, 88 P. 974.)

W. B. Davidson, and Harry Keyser, for Respondents.

Where the boundaries are doubtful, actual occupation for a number of years up to the line whence the party supposes his land to extend, without any opposition from the adjoining proprietor, is strong presumptive evidence of the true place of the line, and the fact that the land was held through a mistake as to the extent of the boundaries will not destroy the adverse character of the holding if the party has occupied and received the rents and profits as his own. (French v. Pearce, 8 Conn, 439, 21 Am. Dec. 680.)

Where there has been no express agreement, long acquiescence by one in the line assumed by the other is evidence of an agreement. (Kip v. Norton, 12 Wend. 127, 27 Am. Dec. 120.) And if continued sufficiently long to give title by prescription, is conclusive evidence. (Jackson ex dem. Suffern v. McConnell, 19 Wend. 175, 32 Am. Dec. 439.)

"Jury may infer a practical location of the disputed boundary line by agreement from long acquiescence." (Turner v. Baker, 64 Mo. 218, 27 Am. Rep. 226; Columbet v. Pacheco, 48 Cal. 395; White v. Spreckels, 75 Cal. 610-616, 17 P. 715; Burris v. Fitch, 76 Cal. 395, 18 P. 864; Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066.)

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This action was brought to quiet the title to about 1.81 acres of land situated in Ada county. The complaint is in the usual form of one to quiet title, and prays that the defendant be required to set forth the nature of his claim and that the title be quieted in plaintiffs.

It is alleged in the complaint that there had been maintained a division fence between the lands of plaintiffs and defendant for thirty years, and that said division fence was constructed by one Peter Brown, the predecessor of plaintiffs, and one G. F. Rhodes, one of the predecessors of the defendant, and at the time it was so constructed was established by said Brown and Rhodes as the true and correct boundary line between their respective lands; and it is also alleged that said line fence has been regarded by all of the parties concerned or interested as the true and correct boundary line between said lands for thirty years.

The defendant in his answer denies the material allegations of the complaint on information and belief, and by way of cross-complaint alleges that he is the owner and entitled to the possession of the land in dispute as a part of the N.W. 1/4 of the S.E. 1/4, and also of other lands in the N.W. 1/4 of the S.E. 1/4 and a part of lot 3, all in sec. 24, township 4 N., R. 1 E., B. M., in Ada county, which described land includes the land in dispute.

Upon the issues thus made the cause was tried by the court without a jury and judgment entered in favor of the plaintiff as prayed for in his complaint. The court thereafter denied a motion for a new trial and this appeal is from the judgment and order denying a new trial.

The errors assigned go to the sufficiency of the evidence to sustain the findings and that the court erred in entering judgment for the plaintiff.

It appears from the evidence that one Peter Brown, the husband of the plaintiff, Caroline Brown, became the owner of the S. 1/2 of the N.W. 1/4 and all that part of the S.W. 1/4 of the N.E. 1/4 lying south and west of what is known as the Valley Road, and lot No. 4, of sec. 24, tp. 4 north of range 1 E., B. M., as early as 1882.

In 1870, G. F. Rhodes became the owner of the N.W. 1/4 of the S.W. 1/4 and a part of the N.W. 1/4 of the S.E. 1/4 and lot No. 3 of said section 24, consisting of 126 acres of land, and continued to own it until about July, 1906, when he sold and conveyed it to one Len Dobson, and Dobson thereafter conveyed it to Harris and Harris to the respondent, E. B. Brown.

There is no question but that the land in dispute is a part of the N. 1/2 of the S.E. 1/4 and lot 3 of said sec. 24, as per government survey, which land was originally entered and patent procured from the government thereto by the said Rhodes, and the claim of respondents thereto is based upon the fact that the division fence between said land of Brown on the south and east and on the north and west of the Rhodes land was from nine to twelve feet in on the north side of the Rhodes land and 122 feet in on the west side of the Rhodes land, making an area of 1.81 acres in dispute.

In support of their contention, the respondent, Mrs. Caroline Brown, testified that she had resided on the land claimed by the respondents since 1883; that she is acquainted with the Rhodes ranch now occupied by the appellant, E. B. Brown; that there was a division fence between the Peter Brown ranch and said Rhodes ranch at the time she first became acquainted with it, part of which was wire and part brush; that that fence had never been changed from that line, but there had been a new fence put on the line, built in the same place the old fence was built, and that is the fence that is now situated there; that it is in the same place the fence was in 1883 when she first knew the land; that her deceased husband, Peter Brown, in his lifetime farmed the Peter Brown ranch up to that fence; that it was cultivated in 1883 and has been continuously since; that Rhodes lived on the adjoining ranch up to five or six years prior to the trial of this action, when he sold the land to one Dobson, that there was never any dispute between said Rhodes and said Peter Brown as to the boundary line between said lands; that each party was occupying up to that time the land on the respective sides of said fence; that the fence was kept in repair by both of the parties.

Another witness testified on behalf of the respondents that he had known said ranch since 1882; that he was employed on that ranch in 1882 and continued to be employed there off and on for about ten years; that...