Edgeller v. Johnston

• Decision Date: 03 November 1953
• Docket Number: No. 7968,7968
• Citation: 74 Idaho 359,262 P.2d 1006
• Parties: EDGELLER v. JOHNSTON et al.
• Court: Idaho Supreme Court

Page 1006

262 P.2d 1006

74 Idaho 359

EDGELLER v. JOHNSTON et al.

No. 7968.

Supreme Court of Idaho.

Nov. 3, 1953.

Whitla & Knudson, Coeur d'Alene, for appellants.

Clay V. Spear, Sidney E. Smith, Coeur d'Alene, for respondent.

THOMAS, Justice.

On July 15, 1951, respondent, hereinafter referred to as plaintiff, filed an action to quiet title against appellants, hereinafter referred to as defendants, to the south 13 feet of the North Half (N 1/2) of Tract 91, Avondale Irrigated Tracts, Kootenai County, Idaho.

The Avondale Tract was opened up in 1910 or 1911 and platted into ten-acre lots. U. S. Highway No. 95 now runs along the west side of Tract 91. The North Half (N 1/2) of said tract as inclosed, exclusive of the 13 foot strip in dispute, contains approximately 4.32 acres. The property of the plaintiff, described in the deed as the North One Acre of the South Half (S 1/2) of Tract 91, contains within her fence lines, including the 13 foot strip, approximately .944 acre; excluding the disputed strip it would contain .758 acre.

On June 6, 1912, a Mr. Nygren acquired title by deed to what was described therein as the South Half (S 1/2) of said Tract 91; one Mr. Brandt at a date not disclosed in the record likewise acquired title by deed to what is described therein as the North Half (N 1/2) of said Tract 91; these respective tracts were divided by a fence running east and west the entire length of the tracts. No dispute in connection with this fence arose until the year 1947 nor was its location changed at any time prior to 1948.

On September 29, 1931, Nygren conveyed the South Half (S 1/2) of Tract 91 to one Bergstrasser. On July 20, 1936, the defendants, by deed, acquired title to what was described therein as the North Half (N 1/2) of Tract 91; on August 31, 1943, Bergstrasser and his wife deeded to the plaintiff what was described in the conveyance as the North One Acre of the South Half (S 1/2) of said Tract 91; at the time of the consummation of this transaction, plaintiff inspected the property and Bergstrasser informed her then that the northerly boundary of the tract conveyed to her was bounded by the fence line now in dispute, that is, the fence which divided the North Half (N 1/2) and the South Half (S 1/2) of Tract 91.

A survey made by defendants in 1947 disclosed that this boundary line fence was located 13 feet north of the true boundary line between the respective tracts; however, at all times prior to 1923 until in the fall of 1948, this fence, although somewhat in a state of disrepair, had remained at the original location and no dispute or controversy had arisen in connection therewith.

In the summer of 1946, the easterly portion of said fence for a distance of approximately 336 feet being in a bad state of repair, plaintiff had all the posts taken out and the wire therefrom rolled up and given to a neighbor, and she commenced the construction of a new fence on the exact line of the old fence and did set new fence posts on such line for a distance in excess of 336' from the east boundary toward the west boundary line. Before the construction of the fence was completed and in 1947 defendants caused a survey of the line to be made; thereafter, and in the year 1948, defendants proceeded to remove many of the new posts set by plaintiff, all against the protests of plaintiff, and built a new fence 13 feet south of the old boundary fence line, also against the repeated protests of plaintiff.

The boundary line fence between the respective tracts was substantial and constructed of wooden posts regularly spaced and set in the ground about one foot and extending above the surface of the ground about five feet, and had attached thereto three or four strands of barbed wire and extended across the entire Tract 91 from east to west from prior to 1923 to about 1940 when the westerly portion thereof had deteriorated and the wire therefrom was used by a lessee of defendants to construct a fence running north and south on the west side of defendants' property.

When plaintiff acquired the property there were permanent improvements located thereon consisting of a two-story building set on a cement foundation which was originally a barn constructed prior to the year 1923 and which was remodeled into a house in 1942 by Bergstrasser, a two-story chicken house with cement floor and foundation constructed by Bergstrasser in 1938, a small garage moved there by Bergstrasser in 1942 and an older barn. Additionally, there had been constructed or placed upon the premises by plaintiff or her predecessors in interest other permanent improvements including a two-story brooder house which was also constructed upon a cement foundation. All of said buildings protrude north of the line which defendants contend is the true boundary line between the respective tracts for variable distances ranging from about 4' to approximately 11'.

If the boundary line is established as contended by defendants as the true boundary line, it would intersect and cut through the house, the garage, a chicken house and two sheds, all of which are permanent improvements and buildings located upon the premises and continuously used and occupied by plaintiff since August, 1943.

When defendants purchased the North Half (N 1/2) of said Tract in 1936 they knew of the existence of the old line fence now in dispute. Neither they nor their predecessors in interest either used or occupied any of the lands south of this fence line prior to the fall of 1948. The plaintiff and her predecessors in interest have at all times prior to the fall of 1948 used, occupied and enjoyed all the property south of the old boundary fence line in the usual ordinary and accustomed manner for farming and poultry raising purposes.

The property of defendants and their predecessors in interest was assessed as the North Half (N 1/2) of Tract 91. The property of plaintiff's predecessors in interest was assessed as the South Half (S 1/2) of Tract 91. The plaintiff's property was assessed as the North One Acre of the South Half (S 1/2) of Tract 91; all such taxes so levied and assessed were paid by the respective parties. The plaintiff and her predecessors paid all the taxes levied and assessed on the improvements located on the area in dispute.

Appellants have set forth numerous assignments of error, many of which are interrelated and overlapping but which in the main are primarily directed at the insufficiency of the evidence to support the findings made, the conclusions of law drawn therefrom, and the judgment entered.

We will not discuss the errors assigned in the order in which they are set forth nor necessarily separately but will consider every substantial question raised under the assignments.

Defendants urge that the court erred in overruling their demurrer to the complaint. Defendants contend that the complaint did not allege record title or any title under a written instrument in plaintiff, or that the property was inclosed, or any facts sufficient to constitute adverse possession. The complaint, in simple and concise language, in substance alleges that plaintiff is the owner and in the actual possession of the property, describing it; that plaintiff and her predecessors in interest have for more than twenty-one years had actual, adverse, open, notorious, continous, peaceable and exclusive occupation and possession of, and paid all taxes levied and assessed against, said property for such period; that appellants claim an interest or estate in the property adverse to plaintiff which claim is without right or foundation.

The court did not err in overruling the demurrer. The complaint alleged in ordinary and concise language the necessary ultimate facts of ownership, possession, payment of taxes and adverse claim. This is sufficient without setting out the probative facts which go to establish the ultimate facts. Woll v. Costella, 59 Idaho 569, 85 P.2d 679; Hammitt v. Virginia Mining Co., 32 Idaho 245, 181 P. 336; Ihly v. John Deere Plow Co., 35 Idaho 651, 208 P. 838; Secs. 6-401 and 5-605, I.C.

Defendants contend that there is no evidence to support an agreed boundary between the conterminous owners and for this reason the finding that the plaintiff and her predecessors in interest held the disputed area adversely cannot stand. There is no direct evidence in the record of a mutually agreed boundary. A determination of this question must necessarily be made from the acts and conduct of the parties and their predecessors in interest, evaluated in the light of the surrounding circumstances. The evidence, free from material conflict, is to the effect that the plaintiff and her immediate predecessor in interest had been at all times since the year 1931 until the fall of 1948 in the exclusive possession of the disputed area and have cultivated and used the property therein in the usual and ordinary manner for farming and poultry raising, and did during such period place permanent improvements thereon; moreover, the occupation, use and enjoyment thereof by either of them was never questioned by anyone prior to 1947 and no steps were taken to disturb plaintiff's...