Diem v. Diem

• Decision Date: 29 May 1962
• Docket Number: No. 39555,39555
• Citation: 372 P.2d 19
• Parties: W. Banks DIEM, Plaintiff in Error, v. Virgil DIEM, Myril Diem, husband and wife; William L. Reno and Jeanette Reno, husband and wife; C. A. Casity and Edna Casity, husband and wife; and Rex Cruzen and Melva Dean Cruzen, husband and wife, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 19

372 P.2d 19

1962 OK 124

W. Banks DIEM, Plaintiff in Error, v. Virgil DIEM, Myril Diem, husband and wife; William L. Reno and Jeanette Reno, husband and wife; C. A. Casity and Edna Casity, husband and wife; and Rex Cruzen and Melva Dean Cruzen, husband and wife, Defendants in Error.

No. 39555.

Supreme Court of Oklahoma.

May 29, 1962.

Syllabus by the Court

1. An alleged cause of action for reformation of a deed, based upon the mutual mistake of the grantors and grantees falls within the sixth subdivision of Tit. 12 O.S.1951, section 95 (7th subdivision of the same numbered section in O.S.1961), and must be brought within five years after discovery of the mistake.

2. In the present case, where a deed executed and delivered in 1939, was sought to be reformed, and the evidence showed the mistake, if any, was discovered by plaintiff at least as early as 1949, the cited statute barred the action after 1954 3. Adverse possession, in order to ripen into prescriptive title must be exclusive; and, where, as in the present case, there was evidence supporting the conclusion that plaintiff's alleged possession of the disputed plot of ground was mixed, or shared, with owners of the adjoining property, before expiration of the 15-year period, the trial court's judgment could not be held to be clearly against the weight of the evidence, nor contrary to law.

Appeal from the District Court of Pawnee County; W. Lee Johnson, Judge.

Action by plaintiff for reformation of a deed, and/or to establish title by prescription to, and for possession of, an irregular plot of ground along the boundary between his acreage and an adjoining acreage, and other related relief. After judgment for defendants, and the overruling of his motion for a new trial, plaintiff appealed. Affirmed.

T. F. Dukes, Hominy, for plaintiff in error.

Byers & Ledbetter by M. J. Ledbetter, Cleveland, for defendants in error, William L. Reno and Jeanette Reno.

John L. Arrington, Pawhuska, for defendants in error, Rex Cruzen and Melva Dean Cruzen.

John W. Tillman, Fred A. Tillman, Don Hampton, Pawhuska, for defendants in error, C. A. Casity and Edna T. Casity.

BLACKBIRD, Vice Chief Justice.

This appeal involves a disputed boundary line between two rural residential properties, or acreages, comprising a major part of the NW 1/4 of Section 18, Township 21 North, Range 8 East, in Pawnee County. The land lies along the northern edge of a paved road, traversed by both U. S. Highways 99 and 64, about a mile west of Clevelan, Oklahoma. It was homesteaded by plaintiff in error's father, but, a few years before he died in 1944, he agreed to divide it between plaintiff in error (hereinafter referred to as plaintiff), and another son and daughter in parcels of 33, 40, and 60 acres, respectively.

In anticipation of this division, plaintiff and his wife, together with plaintiff's son, Virgil Diem, and his wife, Myril, in 1938, moved houses from Cleveland onto the 33 acres promised to plaintiff; and established homes there. Plaintiff's house was placed more than 100 feet north of, and facing, the highway; while the younger Diems' house was placed northeast of it, at a location more than 300 feet from the highway. Instead of constructing a driveway from his house, directly south of it, and across a shallow ravine bordering the highway, for ingress and egress to and from said highway, plaintiff created a dirt, or gravel, driveway extending for a distance in an easterly direction from his house, and then curving in a southeasterly direction, and entering the highway on higher ground at a point southeast of Virgil's house. According to the testimony, plaintiff and Virgil had an understanding that the boundary line between their respective places would follow a diagonal line running northwesterly from the highway, along the east and northeast side of this driveway, until it reached a point due south of a certain point on the north line of the quarter section, before extending due north, and passing west of Virgil's house, to intersect the north line of said quarter section.

In February, 1939, plaintiff's father conveyed to him the 33 acres he promised to give him, and later, the same year, plaintiff, using his own measurements, drew up a deed to Virgil and his wife, in his own handwriting, covering a plot of ground around the latter's house and extending to the highway, for the purpose of giving them that part of the property as a Christmas present. According to the testimony, this deed was executed by plaintiff and his wife and delivered to Virgil and his wife, but was never recorded; and no one appears to know what became of it. According to plaintiff's testimony, this deed described the small acreage, which was to belong to Virgil and his wife, in a manner that routed the boundary line between their house and his, east of the aforementioned driveway, and did not include in its grant, the strip of land said driveway traversed, or the land lying between its curve and the highway. The only deed from plaintiff and his wife to Virgil and his wife, that was ever recorded, was a typewritten one, dated December 22, 1939, covering 3 1/4 acres and describing same by metes and bounds in such a manner that its western boundary is a specific line running straight south from the quarter section's northwest corner, to the highway. This line bisects plaintiff's driveway, and the land lying within its curve, so that the deed purported to convey the land east of it to the grantees, the younger Diems. Despite this, plaintiff continued to use both the driveway and the land within its curve.

About the time Virgil and his wife moved to Henderson Kentucky, in 1948, they sold their home to one William L. Reno. In the warranty deed, dated August 27, 1948, which they delivered to Reno, the boundaries of the property were described exactly as they were in the aforementioned deed said grantors obtained from plaintiff on December 22, 1939, as aforesaid.

The next Spring after Reno purchased the property (frequently hereinafter referred to as the 'East Property'), he decided to build a hog wire fence to form a yard around the house thereon, with 200-foot dimensions, and caused a survey to be made of his western property line. By said survey, it was ascertained that said line bisected the aforedescribed driveway curve area, as aforesaid. Shortly thereafter, in May, 1949, Reno disclosed to plaintiff what the survey had shown, but did not personally interrupt plaintiff's use, and possession, of the driveway, or the land lying within its curve.

After subsequent conveyances of the East Property from Reno to one Rex Cruzen and his wife, and mesne conveyances unnecessary to mention, one C. A. Casity and his wife, acquired said real estate in December, 1956. (In all of these deeds, said real estate was described exactly as it was in the aforementioned one of December 22, 1939). Thereafter, these owners became involved with plaintiff in a controversy over a natural gas line that originally furnished gas for the dwellings of plaintiff, the younger Diems, and another neighbor. In the late Summer or Fall of 1959, plaintiff and the Casitys became involved in another controversy. This one involved the ownership of apricots, growing on the driveway curve area. Shortly thereafter, the Casitys had their west boundary surveyed and this survey showed the boundary line to be the same as revealed by the hereinbefore mentioned survey Mr. Reno had caused to be made. The Casitys thereupon erected a wire fence or barrier on that line; and plaintiff has ever since been deprived of the use of the ground east of said line for all purposes, including those of a driveway.

The same year (1959) plaintiff instituted, in Pawnee County's District Court, Cause No. 10829, entitled 'W. Banks Diem v. C. A. Casity, et al.', in which, among other things, he sought both to establish, and to quiet, his alleged prescriptive title to, and alleged right to possession of, the aforementioned plot, from which the Casitys had barred him, as aforesaid. In the alternative, plaintiff therein sought reformation of his aforementioned deed to his son, Virgil, and his wife. This action was later dismissed, and plaintiff then instituted the present one in February, 1960, seeking similar relief, and naming Virgil Diem and the William Renos, as well as the Casitys, as defendants.

In this present action, the Casitys filed an answer and cross petition, in which they alleged, inter alia, that...