Deidrich v. Simmons

• Decision Date: 13 May 1905
• Citation: Deidrich v. Simmons, 87 S.W. 649, 75 Ark. 400 (Ark. 1905)
• Parties: DEIDRICH et al. v. SIMMONS.
• Court: Arkansas Supreme Court

87 S.W. 649

DEIDRICH et al. v.SIMMONS.

Supreme Court of Arkansas.

May 13, 1905.

Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor.

Suit by Frank Deidrich and others against J. R. Simmons. From a decree for defendant, plaintiffsappeal. Reversed.

Appellants and appellee are the respective owners of two coterminous lots in the city of Pine Bluff; appellants of lot No. 1, and appellee of lot No. 4, of block No. 74 of Tannehill & Owen's Addition to said city. LotNo. 1 lies immediately north of lot 4, and a strip 87 feet wide on the border line, claimed by both parties to be within their respective boundaries, is the subject of this controversy.They claim title from a common source, Jas. M. Hudson, who owned the whole of block 74, and on March 7, 1888, conveyed lot 4 to Malinda E. Kilpatrick, through whom appellee claims title, and on November 14, 1888, conveyed lot 1 to Silas C. Reynolds, through whom appellants claim title.It is shown that about the time of the platting of the Tannehill & Owen's Addition two maps of the city of Pine Bluff, including that addition, were published by surveyors and abstracters of recognized competency, and these maps were generally recognized as correct, and were used as guides in the conveyance of property in the city.According to these maps lot No. 4 of block 74 was 154 feet deep from north to south.One of these maps (White's) shows an alley 12 feet wide runing through block 74 between lots 1 and 4; but the other map (Wilson's) does not show any alley, and according to this map the line of lot 1 comes down to lot 4 and includes the 12-foot strip shown as an alley on the White map.The official plat on file in the recorder's office does not show any alley.The deed from Hudson to Mrs. Kilpatrick described the property conveyed by lot and block numbers as "being 120×154 feet."Mrs. Kilpatrick took possession under her purchase from Hudson, and fenced the lot according to the dimensions named, 120 by 154 feet, and remained in possession until she conveyed to D. Westal July 24, 1894.D. Westal conveyed to W. D. Westal on January 22, 1895, who in turn conveyed to appellee, J. B. Simmons, October 12, 1897.Neither of the Westals nor Mrs. Kilpatrick ever claimed any land except that which had been inclosed by Mrs. Kilpatrick, and at all times recognized and treated the fence as the true dividing line.Silas C. Reynolds, under his purchase of lot 1 from Hudson, took possession, claiming to be the owner down to the division line established by Mrs. Kilpatrick, and inclosed the same with a fence, using the fence built by Mrs. Kilpatrick on the north line of her lot as the dividing line between the two properties.He erected a substantial dwelling house, outhouses, and other necessary buildings on the strip of land in controversy, believing it to be a part of lot 1, and occupied the same as his homestead until he conveyed the property to Manetta Reynolds on August 2, 1894, who a short time afterwards conveyed the same to J. W. Clegg, and the title by mesne conveyance passed on down to appellants.In all the conveyances from Hudson to Reynolds on down to appellants the property was described as lot 1 of block 74, and each vendee held possession of the strip in controversy claiming it as a part of lot No. 1.Mrs. Kilpatrick testified as follows: "Mr. Reynolds built his house just north of the fence I had built, and was living there when we moved away.I never claimed at any time the land north of the fence I built.Mr. Reynolds claimed and lived on the land just north of the fence.I never did claim or assert any right to the land that Reynolds fenced in.I saw Reynolds fencing in the land and building the house.We were living there at the time.I never at the time or afterwards claimed any part of the land except what I had fenced, and never objected to Reynolds building on the land that he fenced."She further testified that when she built the fence she supposed that there was an alley on the north side of her lot, and that she set her fence so as to leave this alley out, but Reynolds built his fence up to and adjoining her fence, which was thereafter used as a partition fence.Appellee Simmons took possession of lot No. 4 under his purchase from Westal in October, 1897.Some time early in 1901he caused the line of lot 4 to be surveyed by J. B. White, the city engineer, who gave to lot 4 the alley shown by the White map to be on the north side, and established the north line of lot 4 12 feet north of the aforementioned division fence.Appellee moved this fence so as to take in the alley without objection from any one, lot No. 1 being at that time in possession of a receiver appointed by the United States Circuit Court in a suit therein pending.On July 15, 1901. one Evans, a tenant of appellants, removed from the dwelling house erected by Reynolds on the strip now in controversy, and appellee, Simmons, immediately took possession and asserted claim of title thereto as a part of lot 4.Appellants thereupon commenced an action of ejectment against appellee for possession of the property, and subsequently filed an amended complaint setting forth, in substance, the facts herein recited, and prayed that the boundaries between lots 1 and 4 be declared as established and recognized by all the previous owners since the conveyances from Hudson, and that the possession of lot 1, including the strip...