O'Donnell v. Penney

• Citation: 17 R.I. 164,20 A. 305
• Parties: O'DONNELL v. PENNEY.
• Decision Date: 06 August 1890
• Court: Rhode Island Supreme Court

20 A. 305

17 R.I. 164

O'DONNELL

v. PENNEY.

Supreme Court of Rhode Island.

Aug. 6, 1890.

Appeal from court of common pleas, Providence county.

Arnold Green, for plaintiff. George J. West for defendant.

MATTESON, J. This is an action of trespass and ejectment heard by the court, jury trial being waived. It is brought to recover possession of a small triangular parcel of land situated on the easterly side of Crout street, in Providence, and containing 32.59 square feet. This triangular parcel of land is a part of lot No. 18, as platted on a plat entitled "Plat of House Lots owned by Charles Potter, on Federal Hill, made July 1, 1856," and recorded in the land records in Providence, in Plat Book No. 4, p. 56. Said lot No. 18 is bounded southerly on At well's avenue, on which it measures 25.075 feet, and, holding that width throughout, extends back therefrom northerly 47.135 feet to lot No. 16 on Bald plat, owned by the plaintiff, and is bounded easterly by lot No. 19 on said plat, and westerly by Crout street. As platted, said lot No. 18 was but 45 feet in depth, but, subsequently the lay-out of Atwell's a venue was narrowed, and the land not included in the lay-out in front of lot No. 18 was thrown into that lot. Said lot No. 16, as platted on said plat, is bounded northerly on Train or street, on which it measures 25.075 feet, and holding that width throughout extends back therefrom southerly 45.135 feet to lot No. 18, owned by one Margaret Wafer, the defendant's lessor, and is bounded easterly on lot No. 17 on said plat, and westerly on Crout street. The measurements above given were taken, not from the original plat, but from a plat of a recent survey of the lots used at the hearing of the case. The triangular parcel of land sued for had been for some time prior to June 18, 1864, included within the inclosure of the plaintiff, the division fence between her estate and that of the said Margaret Wafer being upon the southerly line of said triangular parcel. When this fence was originally built, or what were the circumstances attending its building, the testimony does not show. Bridget Slavin owned the plaintiff's estate from June 18, 1864, until April 20, 1870, when she and her husband conveyed it to Thomas O'Donnell, who was the plaintiff's husband, and who devised it to the plaintiff by his last will and testament. Bridget Slavin testified to the location of the fence upon the line named during her ownership of the estate. Nellie O'Donnell, daughter of the plaintiff, testified that the fence was on the line mentioned at the time her father purchased the property, and had not been disturbed until about eight years before the hearing, when the old fence was taken away, and a new one built the same day, on the same line, which had remained upon the line until torn down by one John Wafer, son of said Margaret Wafer; that Catherine McCaffrey the purchaser of said lot No. 18 from Charles Potter, the original owner of the platted lots, and who owned that lot from August 26, 1856, to September 19, 1887, and her father. Thomas O'Donnell, always thought the fence was in the right place, and on the line between the two estates. The plaintiff testified that the fence was on the line named at the time of her husband's purchase of the property, and no change had been made in its position; that the old fence had been taken down about eight years prior to the hearing, and a new one built upon the same line, which remained until it was removed by said John Wafer, in August, 1889; that her husband and herself had always claimed to that line; that her husband died in August, 1887, and that both he and Mrs. McCaffrey believed the fence was on the proper line. James Cavanagh testified that he built the new fence eight years or so before the hearing; that Mrs. McCaffrey put down the stubs on the line for him to build the fence by, but that he, by direction of Mrs. McCaffrey, who was apprehensive lest she should encroach upon her neighbor's lot, built the fence three inches southerly from the line of the former fence, on the McCaffrey side. The defendant offered no testimony in rebuttal on these points of that produced by the plaintiff. For the defendant John Wafer testified that his mother, Margaret Wafer, bought her estate in July, 1889; that he cut down the fence August 23, 1889, and that the defendant's carriage-house extends three or four inches beyond the line from which the fence was removed. The plaintiff claims the right to recover because the line from which the fence was removed had been recognized and acquiesced in by the owners of the two estates for at least 25 years before the removal of the fence, as the true dividing line between the estates.

There are numerous decisions to the effect that when the boundary line between adjacent lands is in dispute, or uncertain, the owners may establish a division line between them by express parol agreement, and that if such agreement is immediately executed, and followed by actual possession according to such line, the agreement is binding and conclusive, and such division line shall not be disturbed, though it may afterwards appear that it was not the true line according to the paper title. Wakefield v. Boss, 5 Mason, 16, 23; Kellogg v. Smith, 7 Cush. 375, 380; Gray v. Berry, 9 N. H. 473, 477; Orr v. Hadley, 36 N. H. 575, 578; Jackson v. Dysling, 2...