Edwards v. Fleming

• Court: Kansas Supreme Court
• Writing for the Court: PORTER, J.:
• Citation: Edwards v. Fleming, 83 Kan. 653, 112 P. 836 (Kan. 1911)
• Decision Date: 07 January 1911
• Docket Number: 16,713
• Parties: JOHN E. EDWARDS, Appellee, v. WILLIAM H. FLEMING et ux., Appellants

112 P. 836

83 Kan. 653

JOHN E. EDWARDS, Appellee, v. WILLIAM H. FLEMING et ux., Appellants

No. 16,713

Supreme Court of Kansas

January 7, 1911

Decided January, 1911.

Appeal from Lyon district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ADVERSE POSSESSION -- Mistake as to Boundary --Intention. The real test as to whether or not possession of real estate beyond the true boundary line will be held adverse is the intention with which the party takes and holds the possession. It is not merely the existence of a mistake, but the presence or absence of the requisite intention to claim title, that fixes the character of the entry and determines whether the possession is adverse.

2. ADVERSE POSSESSION--Presumptions Arising from Possession of Real Estate. Among the presumptions which usually obtain with respect to the possession of real estate are these: (1) It is presumed that the possession is in subordination to the true title; (2) where one enters into possession under a deed it is presumed that he claims only the title given him by his deed and that his possession is restricted to the premises granted.

3. ADVERSE POSSESSION--Mistake as to Boundary--Intention. Where a fence is believed to be the true boundary and the claim of ownership is up to the fence as located, if the intent to claim title exists only on the condition that the fence is on the true line the intention is not absolute, but conditional, and the possession is not adverse. (Scott v. Williams, 74 Kan. 448, 87 P 550.) If, however, in such a case there is a clear intention to claim the land up to the fence, whether it be the correct boundary or not, the possession will be held adverse.

4. ESTOPPEL--Acquiescence in Possession of Real Estate--Intention--Adverse Possession. In an action to quiet title the plaintiff claimed under deeds to himself and his immediate grantor, executed by the defendants, which described the land conveyed as bounded on the south by a hedge fence. The plaintiff and his grantor had been in the actual possession of the land claiming title up to the fence for more than fifteen years, during which time the defendants continued to own the land adjoining on the south, but made no claim to land north of the hedge fence. Held, that the evidence warranted a finding of adverse possession by the plaintiff, intention on the part of the defendants to fix the fence as the boundary, and acquiescence on their part sufficient to bar them from claiming that the fence was not the true boundary.

5. SURVEYS AND BOUNDARIES--Quieting Title--Title by Deed, Adverse Possession, and Estoppel. Where it appears that the plaintiff has acquired title by deed, adverse possession, and acquiescence in the boundary by the defendants, a survey afterward made at the request of the defendants, under the provisions of section 2275 of the General Statutes of 1909, fixing a different boundary to the tract claimed by the plaintiff, furnishes no defense to an action to quiet plaintiff's title.

6. SURVEYS AND BOUNDARIES -- Establishment of Boundaries -- Change of Title. A statutory survey may establish the permanent boundaries between two tracts of land, but can not change the title to the land.

L. B. Kellogg, John Madden, and C. M. Kellogg, for the appellants.

J. Jay Buck, and S. S. Spencer, for the appellee.

OPINION

PORTER, J.:

Edwards sued the Flemings to quiet his title to a tract of land of about ten acres. The defendants formerly owned the land, and, in 1891, conveyed the same to Floyd E. Fleming by warranty deed, which described the tract as follows:

"Commencing twenty (20) rods west of the northeast corner of northeast quarter (1/4) of section thirty-three (33), township (20), range thirteen (13), thence west sixty (60) rods, thence south twenty-six rods to hedge fence, thence east sixty (60) rods, thence north to place of beginning, containing ten (10) acres more or less."

The petition alleged that Floyd E. Fleming was in possession of the land under this conveyance until 1908, when he conveyed by the same description to the plaintiff, and that the plaintiff has been in possession of the land ever since the conveyance to him. There was the further allegation that both deeds made the "hedge fence" an artificial boundary and a part of the description of the land conveyed. The plaintiff also alleged that he and his immediate grantor had been in the open, notorious, exclusive and adverse possession of the tract of land, and the whole thereof, up to the hedge fence on the south, for more than fifteen years preceding the beginning of the action; and, further, that a short time before the action was brought the defendants had entered upon the tract of land claimed by the plaintiff and moved a wire fence, and are now claiming that the hedge fence is not the true boundary on the south, and claim to own the land that lies immediately north thereof.

The defendants in their answer set up a survey made by the county surveyor on the 18th day of January, 1908, at their request, and upon due notice to the plaintiff, as required by the statute, and alleged that on the day appointed the plaintiff personally appeared at the. time and place of survey; that the county surveyor duly surveyed and established the corners and boundaries between the lands of the defendants and the lands of the plaintiff, and that the report and plat of the survey so made were thereafter duly filed in the office of the county surveyor, and that the survey was acquiesced in both by the plaintiff and the defendants, and that no appeal therefrom was ever taken. To the answer there was attached a copy of the surveyor's report, and affirmative relief was asked declaring the boundaries to be those established by the survey.

In his reply the plaintiff alleged that there were no disputed corners or boundaries between the lands of the parties and there was no occasion for any survey. The reply also alleged that the notice served upon him by the county surveyor was insufficient because, in describing the land to be surveyed, it did not follow the description in the deeds under which he held, and that there were a number of other irregularities in the survey.

At the conclusion of the evidence the court made a number of special findings, and found generally for the plaintiff and against the defendants. A decree was entered quieting title in the plaintiff to the disputed tract of land. The defendants appeal.

Among the special findings are: That the plaintiff and his immediate grantor had been in the open, notorious, exclusive and adverse possession of the tract of land claimed by him, and the whole thereof, for more than fifteen years, and that when the defendants conveyed the land in question to Floyd E. Fleming they intended to, and did, convey to him a certain tract of land inclosed by four certain fences, to wit, a hedge fence on the north, a hedge fence on the west, a hedge fence on the south, and a post-and-wire fence extending from the hedge fence on the south and along the entire east side to the hedge fence on the north, and that the fences had remained substantially located in the same places from the time of their being built until some time during the month of March, 1909, and after the conveyance to the plaintiff.

The defendants offered testimony to show that the possession had not been adverse. But there was little conflict in the testimony. Defendant William H. Fleming testified that the hedge fence on the south was planted more than thirty years ago, not for the purpose of fixing any boundary line, but in order to fence off a pasture used by his father, who at that time owned the whole eighty acres. The plaintiff lived within a few rods of the land for forty-two years. He testified that he furnished the plants for the west and south hedge fences, and helped the old gentleman, Fleming, then the owner, to set them out; that twenty-five years ago a post-and-wire fence was built along the whole east side, inclosing the entire field; that the fences were on the same line when he bought the land in 1908.

Floyd E. Fleming testified that he had owned this tract of land; that he bought it from his brother, defendant William H. Fleming, and sold all he owned to the plaintiff; that he knew the boundaries of the tract; that it was fenced on the east with a wire fence, and on the north, west and south by hedge fences; that during the seventeen years in which he occupied the land the defendants, never to his knowledge, claimed to own any of the land inside these fences. There was testimony of a witness who had rented the land as the "Floyd E. Fleming tract," and who occupied it up to the south hedge, that the defendants never claimed to own any of the land within the fences until after the conveyance to the plaintiff. The findings of the court are fully sustained by a preponderance of the evidence. The following is a plat of the survey upon which the defendants rely:

[SEE ILLUSTRATION IN ORIGINAL]

The plaintiff claims the land bounded on the north by the public road and on the west, south and east by the dotted lines. The defendants own the land south and east of the plaintiff's land, and the boundaries fixed by the surveyor gave to the plaintiff only the land included within the straight lines, amounting to 9.75 acres, which is 3.75 acres less than the plaintiff claims. The controversy, so far as the defendants are concerned, is over the location of the south and east boundaries of the tract.

The defendants rest mainly upon the conclusiveness of the survey under section 2275 of the General Statutes of 1909 (Laws 1891, ch. 89, § 10), which provides that "the corners and boundaries established in any survey . . . where no appeal is taken from the surveyor's report ....