Carstensen v. Brown

• Decision Date: 19 May 1925
• Docket Number: 1169
• Citation: 32 Wyo. 491,236 P. 517
• Parties: CARSTENSEN v. BROWN [*]
• Court: Wyoming Supreme Court

236 P. 517

32 Wyo. 491

CARSTENSEN v. BROWN ^[*]

No. 1169

Supreme Court of Wyoming

May 19, 1925

APPEAL from District Court, Washakie County; PERCY W. METZ, Judge.

Action by Henry A. Carstensen against Earl Brown to recover a strip of land involved in a disputed boundary. There was judgment for plaintiff and defendant appeals.

Judgment reversed and remanded.

H. C Brome and C. H. Harkins for appellant.

Defendant's action is barred by limitation; there was acquiescence as to the boundary marked by a fence for more than 10 years; Miller v. Co. (Ia.) 82 N.W. 1038; the government survey cannot affect a line agreed by coterminous owners; Tracy v. Newton (Ia.) 10 N.W. 636; Hiat v Kilpatrick, 48 Ia. 78; Foulche v. Stockdale, 40 Ia. 99; Davis v. Curtis, (Ia.) 25 N.W. 932; acquiescence in a division line followed by actual occupany for a period equal to the time prescribed in the statutes of limitation is conclusive; Sneed v. Osborn, 25 Cal 628; Wingler v. Simpson, 93 Ind. 203; Hubbard v. Stearns, 86 Ill. 35; Diehl v. Zanger, 39 Mich. 602; Berry v. Garland, 26 N.H. 473; O'Donnell v. Penney, (R. I.) 20 A. 305; Gwynn v. Schwartz, (W. Va.) 9 S.E. 880; Crowell v. Beebe, 10 Vt. 33; there are a few cases to the contrary; Davis v. Caldwell (Ala.) 18 So. 103; Worcester v. Lord, 56 Me. 265; but the weight of authority is the other way. Plaintiff failed to prove ownership; plaintiff must recover upon the strength of his own title; original government corners, if found, are conclusive, 9 C. J. 164; Cargin v. Powell, 128 U.S. 691; a resurvey is but the retracing of the line; 4903-4824 U.S.C. S. 1918; a resurvey is without force until approved; Medley v. Robertson, 55 Cal. 396; Garfield v. Wilson, 74 Cal. 175; United v. Curtner, 38 F. 1. Kendall v. Bunnell, 205 P. 83; field notes are the best evidence when corners are lost, Galbraith v. Parker, 153 P. 283; Stangair v. Roads, 41 Wash. 583; Reed v. Bartlett, 255 Ill. 76; under this rule plaintiff's evidence is insufficient to locate the East line of his land. Resurveys are not permitted to impair bona fide rights, 4824 C. S. 1918.

R. B. Landfair and R. B. West for respondents.

Where adjoining owners are ignorant of the true boundary there is no estoppel to deny that a fence was a true boundary, 26 Wyo. 356. The question of acquiescence and estoppel was settled by this Court on the same issues and the same record in a former hearing; this established a prima facie case for plaintiff and placed the burden on defendant to prove title by adverse possession. Brown was not claiming Carstensen's land, but his own, as he supposed; this is not adverse posesssion, nor is it acquiescence and estoppel in the plaintiff; Fieldhouse v. Leisburg, 15 Wyo. 297.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought on January 13, 1919, by the plaintiff, H. A. Carstensen, against defendant, Earl Brown, to recover a strip of land hereinafter mentioned. The parties will herein be referred to in the same manner as in the court below.

Plaintiff has the legal title to the SE 1/4 of the SW 1/4 of Section 21, and the NE 1/4 of the NW 1/4 and the W 1/2 of the NE 1/4 of Section 28, Township 48, Range 89 West of the 6th P. M. Defendant has the legal title to the E 1/2 of the NE 1/4 of Section 28, and the S 1/2 of the SE 1/4 of Section 21 in said Township and Range, which adjoins the land of the plaintiff on the east and partially on the north. Plaintiff brought this action against the defendant, alleging that the latter wrongfully kept him out of possession of his said lands. Defendant answered, alleging in substance that in 1901 plaintiff's grantor, one Oscar McNay, entered the land described in plaintiff's petition as a homestead, and during said year established the boundary line between said land and the land lying to the east and north thereof and now owned by defendant, by building a fence along said boundary line; that in 1904 McNay obtained a patent for said land and conveyed the same to the plaintiff, who immediately thereafter took possession of the land lying west and south of said boundary line, and has resided upon and cultivated the same since that time; that about 1902 one William Greet, entered the land now owned by defendant as a homestead; that Greet was advised that a fence established by McNay was the true boundary line between said lands; that in the latter part of the year 1904, defendant purchased the improvements on the land entered by Greet, who thereupon relinquished his filing, and Brown filed upon the same as his homestead; that defendant had no information or knowledge respecting the boundary line between said lands other than the information conveyed to him by Greet, which was that the fence above mentioned was the true boundary line between said tracts; that the lands susceptible of irrigation upon said tract occupied by said Greet contains about sixty-nine acres and lies immediately east and north and next to said established boundary line; that relying upon the statements of Greet and the fact that he was in possession of said land lying immediately east and north of said fence and cultivating and farming the same, he was induced to and did pay Greet $ 1,000 for his improvements and thereafter filed thereon as a homestead, and from the year 1905 has been continuously in the open, notorious, visible and exclusive possession of said land, irrigating, cultivating and using said land lying east and north of said fence, and made valuable improvements thereon; that he received a patent for his said land on April 28, 1914; that plaintiff prior to November 23, 1918, at all times maintained said fence as the true boundary line between said tracts, never at any time prior to said date asserting any right to or claim upon any land lying east and north of said fence, but at all times acquiescing in and agreeing to the boundary line as established by his grantor, and that plaintiff is accordingly estopped from making any claim or asserting any interest in the land lying east and north of the said fence. Defendant, as a separate defense, also pleaded adverse possession. The case was tried to a jury, which returned a verdict in favor of said defendant. Thereupon an appeal was taken to this court. The opinion in that case appears in 26 Wyo. 356, 185 P. 567. This court in that case held that the evidence was not sufficient to prove adverse possession, but reversed the case for an erroneous instruction on estoppel. The case was retried to a jury in the court below, with but little additional evidence taken. The court directed the jury to return a verdict in favor of plaintiff, which was accordingly done and judgment entered thereon May 20, 1922, from which judgment the present appeal is taken.

The dispute in this case is over a strip of land east and north along the boundary fence hereinbefore mentioned and the plaintiff seeks to move that fence to the east a sufficient distance so as to take of the lands heretofore claimed by the defendant, about forty-six acres. The land claimed by defendant contains only about sixty-nine acres of land fit for irrigation, all of it lying next to the fence in controversy. A ridge or bluff runs along the eastern portion of the lands of defendant, covering lands that are barren and of no value, and to move the fence in accordance with the claims of the plaintiff would leave the defendant with only a little over twenty acres of land out of a total of one-hundred sixty acres, which would be of any value. There is not much conflict in the evidence. Prior to 1903 and probably in 1901, one McNay made homestead entry on the land to which plaintiff has the legal title, and built the fence in question. It appears that very few, if any, of the monuments marking the original government corners in the township in which these lands are situated, could be found, and McNay had a line run by a surveyor from a supposed quarter section corner on what is called Buffalo Flat. The record does not show how far this corner is from the land in controversy. In any event, the surveyor surveyed up to a point approximately half a mile from the line on which the fence was subsequently built. The surveyor told McNay to look through his surveying instrument and step off a half mile and he would come to his east line, and it was in that manner that McNay located the fence, determining the course north and south, as he says, "by the shadow of the sun at noon." He stated that the fence was not built with reference to government corners, because none could be found. In 1904 and 1905 McNay sold and conveyed the land to plaintiff and another and shortly thereafter plaintiff acquired the full title. In 1903 one Greet filed on the land, to which the defendant now has the legal title. In 1904 his possessory right and improvements were bought for $ 1,000 by the defendant, who thereupon filed on the land as a homestead, and who since that time has been in possession thereof, has irrigated and cultivated the strip in controversy and has made some valuable improvements thereon, the extent of which does not clearly appear. Greet testified that he showed defendant the land which, he presumed to be his homestead, and of which he presumed the fence to be the west and south line. A house had been built on the strip in controversy and was occupied by Greet and subsequently by the defendant in this case until a new house was built later. Greet supposed, from statements made to him, the source of which does not appear, that the fence constituted the true boundary line. The defendant testified that Greet told him that the fence was the line; that he had made claim to the land east and north of the fence aforesaid from the time that he had taken possession thereof, and...