Carstensen v. Brown

• Decision Date: 18 December 1919
• Docket Number: 979
• Citation: 26 Wyo. 356,185 P. 567
• Parties: CARSTENSEN v. BROWN
• Court: Wyoming Supreme Court

185 P. 567

26 Wyo. 356

CARSTENSEN v. BROWN

No. 979

Supreme Court of Wyoming

December 18, 1919

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

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

Reversed.

H. W Rich, for appellant.

The motion to dismiss is not well taken; the statute, Sec. 10 Chapter 32, Laws 1917, does not require the record to show notice to the Judge; there is a contrary inference since the section requires the record to be made up and filed before such action be taken by the Clerk; adverse possession cannot be predicated upon a mistake as to the true boundary line the appellant is not estopped from asserting his rights by reason of statements made by adjoining land owners; he is not bound by a mistake as to the true boundary (Bayton v. Waters, 177 P. 525; Fieldhouse v. Leisburg, 15 Wyo. 207; Skinner v. Crawford, 54 Iowa 119; Crawford v. Hebrew, 96 P. 348; Mfg Co. v. Packer, 129 S.W. 760; Scott v. Williams, 87 P. 550; Treese v. Ass'n, 122 F. 598), and other cases cited in the brief show the rule to be universal (Brownlee v. Williams, 77 P. 250); the Government survey under which plaintiff claims, stands unchallenged, and must control (Vincent v. Blanton, 85 S.W. 703; Colonization Co. v. Flipper, 29 S.W. 813); estoppel does not arise from silence or inaction, unless the claimant knows there is occasion to speak or act (Griffin v. Nichols, 51 Mich. 575); especially when the means of knowledge is equally open to both parties (Cantley v. Morgan, 51 W.Va. 304); intruction No. 1, given by the court, is misleading and prejudicial; instruction No. 5 did not state the law with reference to estoppel; the court erred in refusing instruction No. A (Betz v. Mathiowitz, 72 Minn. 443); the court erred in refusing to instruct the jury on the statute of limitations (Sutton v. Clark, 82 Am. St. Rep. 853); defendant's evidence shows that plaintiff was estopped from asserting his rights to the land; defendant's affirmative defenses were sustained; the verdict of the jury is contrary to law and the evidence.

C. H. Harkins and H. C. Brome, for appellee.

The record fails to show notice by the Clerk to the Judge, and the appeal should be dismissed; appellee failed to prove ownership of the land in controversy; plaintiff must recover upon the strength of his own title, and in this he failed; the original government corners are controlling (9 Corpus Juris 164; Craigon v. Powell, 128 U.S. 691; U. S. Comp. Stat. 1918, Sec. 4803); field notes are competent to establish lost corners (Galbraith v. Parker, 153 P. 283; Washington Rock Co. v. Young, 290 Utah 106; Stangair v. Roads, 41 Washington 583; Ogilvie v. Copeland, 145 Ill. 98; Read v. Bartlett, 255 Ill. 76); appellant is estopped to claim land lying east and north of the boundary fence occupied by defendant by his own silence and inaction (Hayes v. Livingston, 34 Mich. 384); the question of adverse possession was properly submitted to the jury; the authorities are in conflict as to whether adverse rights may be established under a mistaken belief; the cases are reviewed in the Idaho case of Bayhouse v. Urquides, 105 P. 1066, but there was no mistake in the present case (Allen v. Lewis, 177 P. 433; Fieldhouse v. Leisburg, 15 Wyo. 207; Bryant v. Cadle, 18 Wyo. 64).

BEARD, CHIEF JUSTICE. POTTER, J., and BLYDENBURGH, J., concur.

OPINION

BEARD, CHIEF JUSTICE.

In this case the parties occupy the same relative positions as in the District Court and will be referred to as plaintiff and defendant.

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, Tp. 48 N., R. 89 W. 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. Plaintiff brought the action against the defendant, alleging that defendant 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 the 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 defendant filed on the same as a 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 relying on the statements of Greet and the fact that he was in possession of all the land lying immediately east and north of said fence and cultivating and farming the same, was induced to and did pay Greet $ 1,000.00 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 all of said land lying east and north of said fence, and had made valuable improvements thereon. That he obtained a patent for the said E 1/2 of the NE 1/4, Sec. 28, and S 1/2 of the SE 1/4, Sec. 21, in April, 1914. That plaintiff maintained said fence as the true boundary line between the respective tracts and never asserting any claim or right to the land east and north of said fence. He pleads an estoppel, and also title by adverse possession. The reply admitted that defendant had no information or knowledge of the true boundary line. Admitted that defendant made homestead entry as alleged, and that he had been in possession of the land described in his homestead entry since the date of making the same. Denied the other allegations of the answer.

The case was tried to a jury which returned a verdict in favor of defendant. A motion for a new trial was denied and judgment entered on the verdict, and plaintiff appeals.

The defendant has filed a motion to dismiss the appeal for the reason and on the ground that it does not appear from the record on appeal that the judge of the District Court, before whom the action was tried, was notified in writing, or at all, that the record on appeal in the case had been perfected and was on file in the office of the clerk of the District Court, as required by section 10, chapter 32, S. L. 1917. Said section provides, "The Clerk of the District Court shall, within five days after the specifications of error are filed in his office, notify the judge of the District Court before whom the action was tried, in writing, that the record on appeal in the cause is perfected and on file in his office," etc. There is nothing in the statute requiring that the record on appeal shall show that such notice was given. Also the record on appeal must be perfected and filed in the office of the clerk of the District Court before the notice is to be given, and, therefore, the notice could not be a part of such record. The clerk is presumed to have done his duty by giving the notice, at least in the absence of any showing to the contrary. The motion to dismiss the appeal, therefore, is denied.

The controversy in this case is over a strip of land between a certain fence and the boundary line between the lands to which the respective parties have the legal title, and contains about fifty acres. There is not much conflict in the evidence, which is to the effect, that, 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. It appears that very few, if any, of the monuments marking the original government corners in the townships in which these lands are situated could be found, and McNay had a line run by a surveyor from a supposed quarter section corner presumably on the north line of the township (as McNay testified that the surveyor called it a correction line) "down" some distance but found no established corners. He then told McNay to look through the instrument and step off a half mile and he would come to his east line and it was in that manner McNay located the fence, determining the course north and south, as he says, by the shadow of the sun at noon. He says that the fence was not built with reference to government corners because none could be found. In 1904 or 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 defendant now has the legal title, and in 1904, defendant bought his improvements and he relinquished and defendant filed on the land as a homestead and has since been in possession and has irrigated and cultivated the strip in controversy, or a part of it, up to the fence. Greet testified that he showed defendant the land "he naturally supposed was on the place." Did not show him any boundary lines of the place. Had no conversation with him about the fence. Supposed that the fence was the line, but did not know...