Downing v. Boehringer
Decision Date | 10 February 1960 |
Docket Number | No. 8710,8710 |
Citation | 82 Idaho 52,349 P.2d 306 |
Parties | J. A. DOWNING and Ollie D. Downing, husband and wife, Plaintiffs-Respondents, v. William BOEHRINGER and Dorothy Boehringer, husband and wife, and Lawrence A. Paxton, and Blue Flame Gas Company, an Idaho Corporation, Defendants-Appellants. |
Court | Idaho Supreme Court |
Gigray & Boyd, Caldwell, for appellants.
Donart & Donart, Weiser, S. Ben Dunlap, Caldwell, for respondents.
Plaintiffs (respondents) in January, 1950, sold to one, Stevens, a portion of a tract of land owned by them in or near Caldwell, in Canyon County. In 1951 Stevens and wife contracted to sell the property purchased from plaintiffs to defendant (appellant) Paxton. On or about September 17, 1951, Stevens and wife assigned the contract of sale to defendants (appellants) Boehringer. The defendant (appellant) Blue Flame Gas Company holds possession under Paxton.
Paxton built a small barn and boat shed on the property and in the spring of 1954 erected a dwelling house. Prior to the building of the house and at the time the lines for its location were being staked on the ground, plaintiffs objected to the location and warned defendants that the proposed building site was partially located on their property. Plaintiffs again protested to the location of the dwelling house during the digging of the basement and also during the erection of the building itself. In March, 1956, plaintiffs caused a survey to be made by a civil engineer for the purpose of locating the boundary line between the two properties. The survey showed an encroachment and occupancy of plaintiffs' property by the three buildings varying from 3.5 feet to 8.2 feet from the true boundary.
December 6, 1956, plaintiffs commenced this action to recover possession of the strip of ground occupied by defendants' buildings. In their answer defendants allege:
On trial, defendants called as a witness their predecessor in interest, Mr. Stevens. He testified:
'In the Fall of '50, or in the Summer of '50, there was a ditch going right diagonally across the place. It come in right next to the store and we couldn't back into the store very good there, and we asked him if we could move the ditch around and he said it would be all right, but he didn't think that we could do it. He didn't think the water would run there. He said it would be fine if we could get it up on the corner of his place where he could irrigate his lawn. * * *
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Upon objection being made to further like testimony by the defense, the court ruled that the allegations of the answer were insufficient to constitute a defense in that neither adverse possession for the statutory period, mistake, acquiescence nor uncertainty as to the location of the true boundary line, was alleged.
Defendants were allowed to make an offer of proof. The offer does not encompass any proposed proof that the true boundary line was in dispute between plaintiffs and Stevens; nor that its location was uncertain, or unknown to either plaintiffs or Stevens. Defendants then moved to amend their...
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Trappett v. Davis
...but merely the location of the respective existing estates and the common boundary of each of the parties." Downing v. Boehringer, 82 Idaho 52, 56, 349 P.2d 306, 308 (1960) (citations omitted). See Morris v. Frandsen, 101 Idaho 778, 621 P.2d 394 (1980); Fry v. Smith, supra; Edgeller v. John......
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...property in violation of the statute of frauds ... and is invalid." Gameson v. Remer, supra at 791, 537 P.2d at 633; Downing v. Boehringer, 82 Idaho 52, 349 P.2d 306 (1960). See also Hyde v. Lawson, supra; Lisher v. Krasselt, 94 Idaho 513, 492 P.2d 52 (1972); Fry v. Smith, 91 Idaho 740, 430......
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