Flynn v. Allison

• Decision Date: 12 May 1976
• Docket Number: No. 11954,11954
• Citation: 549 P.2d 1065,97 Idaho 618
• Parties: Charles Norman FLYNN and Mary B. Nelson Murphy, Plaintiffs-Respondents, v. I. M. ALLISON and Ruth A. Allison, husband and wife, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 1065

549 P.2d 1065

97 Idaho 618

Charles Norman FLYNN and Mary B. Nelson Murphy, Plaintiffs-Respondents, v. I. M. ALLISON and Ruth A. Allison, husband and wife, Defendants-Appellants.

No. 11954.

Supreme Court of Idaho.

May 12, 1976.

Kenneth P. Adler, Council, for defendants-appellants.

Lary C. Walker, of Walker & Sanders, Weiser, for plaintiffs-respondents.

BAKES, Justice.

I. M. and Ruth Allison appeal from a judgment of the district court in Adams County which (1) quieted title in plaintiff respondent Charles Norman Flynn to a disputed strip of land along the southern border of Allisons' property, based on a finding that Flynn had perfected title to the land by adverse possession; (2) denied plaintiff respondent Mary Murphy, Allisons' grantor, relief in her request to reform the warranty deed which she gave to Allisons, rejecting her claim of mistake in the description in the deed; and (3) denied defendant appellants Allisons relief in their counterclaim against Mary Murphy for damages resulting from misdescription in the deed. Allisons attack the finding and conclusion of the district court that Flynn had perfected title to the disputed strip of land by adverse possession arguing that the payment of taxes requirement under I.C. § 5-210 ¹ had not been satisfied, or in the alternative, Allisons claim that by quieting title to the property in Flynn and refusing Murphy's request to reform the deed, the district court should have granted them relief on their counterclaim for breach of the covenant of warranty of title. We affirm the district court's finding that Flynn had perfected title to the disputed property by adverse possession and its action in quieting title to the property in Flynn, but we reverse the district court's denial of relief to Allisons in their counterclaim for damages resulting from the breach of the covenant of warranty of title.

Plaintiff respondent Flynn instituted this action to quiet title in himself to the disputed strip of property which measures .27 acre (60 feet by 185 feet), claiming that he had perfected title to the property by adverse possession for a period in excess of five years. The disputed .27 acre is located at the northern boundary of a parcel of land in Adams County which Flynn has owned since 1960. It is at the southern boundary of a neighboring parcel now owned by defendant appellants I. M. and Ruth Allison, who purchased the property from defendant respondent Mary Murphy in 1969. Allisons claim ownership of the disputed property through their warranty deed from Murphy. However, Murphy claims that she intended to except the disputed piece from her deed to Allisons, but made a typographical error in the exception clause of the description in the deed. She joined with Flynn as plaintiff in this suit, deposited a correction deed with the trial court and sought a reformation of the Allisons' deed to conform to her intentions. Allisons denied Murphy's claim of a typographical error, and counterclaimed against Murphy for damages resulting from the partial failure of title to the land conveyed by Murphy to Allisons in her warranty deed.

The parcels of land in question lie north-south of each other along the Little Salmon River and are described in terms of 'frontage feet' along the river. In 1960, Flynn purchased two contiguous 100-foot parcels, the northern one from a John Nelson and the other from John Olney, who presently owns property south of Flynn. At the time of purchase, the property was unsurveyed and unimproved; Flynn admitted that he had no idea where his actual boundaries were. In 1961, Boise Cascade Corporation commissioned a survey of the area in connection with a possible land trade. That transaction fell through, but the survey markers remained. Flynn thought that the Boise Cascade survey set his northern boundary and the southern boundary of the Murphy property, and he erected a fence according to the markers. In the following years he cleared the land, planted a lawn and trees, and located his septic tank in that area.

The Murphy property was unimproved; Mrs. Murphy lived in Riggins and visited the property about twice a year. She was aware of the Flynn boundary fence but was not aware that it was inaccurate. In 1967 she commissioned a survey of her parcel, preparatory to offering the property for sale. The survey revealed that Flynn had encroached about sixty feet north onto the Murphy property-that there was an 'overlap' which was the distance between the Boise Cascade survey markers and the point at which the 1967 survey placed Murphy's southern boundary.

After discovery of the discrepancy, Murphy took no action. She testified at trial that as far as she was concerned her south boundary was at the Flynn fence. She stated that she thought that since Flynn's fence had been there so long, he probably was now the owner of the overlap. The Flynn fence remained in its overlapping location, and was located there when Allisons purchased the Murphy parcel in 1969.

At trial, Murphy stated that she pointed out the Flynn fence to Allisons and told them that there was an overlap, but that she felt the fence was the boundary. She claims to have given Allisons a copy of the 1967 survey map, pointing out the differences but telling Allisons that she was only selling to the fence line. Murphy herself prepared the warranty deed, using the same property description as her own deed, but adding the words, 'excepting approximately 60 (inches) overlap on South side.' She testified that she fully intended to except sixty feet from the deed, but she inadvertently typed sixty double prime ( ) rather than sixty single prime( ).

Murphy's testimony was controverted by that of I. M. Allison, who stated that Murphy made no representations to him about the south boundary, and that he never saw the actual location of the Flynn fence when they viewed the property. He also stated that he did not see the survey map which showed the encroachment until a year later. He had no objection to the five foot (60 ) exception contained in his deed, alleging that Murphy had informed him that she intended to except five feet. While the trial court did not specifically resolve this conflict, it did deny Murphy's request for reformation of the deed and its ruling is supported by the testimony of Allison and others which refuted Murphy's claim of mistake, and will not be disturbed on appeal. I.R.C.P. 52(a); Hyde v. Lawson, 94 Idaho 886, 499 P.2d 1242 (1972).

In their first assignment of error, defendant appellants Allisons contend that the trial court erred in its finding of fact number three, that Flynn had fulfilled the statutory requirement of payment of taxes on the fence-enclosed overlap strip, and in its conclusion of law number one, that pursuant to I.C. § 5-210 as construed in Scott v. Gubler, 95 Idaho 441, 511 P.2d 258 (1973), Flynn had perfected title to the disputed .27 acre by adverse possession. Appellants acknowledge that this Court has adopted a liberal construction of the payment of taxes requirement imposed by the statute, Standall v. Teater, 96 Idaho 152, 525 P.2d 347 (1974); Scott v. Gubler, supra, but urge that this case is distinguishable from those cases. Further liberalization of the payment of taxes requirement by this Court, appellants argue, would in effect remove that requirement entirely in boundary disputes, contrary to the language of the statute.

It is undisputed that Flynn has enclosed the overlap by the erection of a fence and has improved the area by planting a lawn and trees and installing a septic tank. It is further undisputed that Flynn had occupied and claimed the overlap for a period well in excess of five years. The sole question is whether Flynn has 'paid all the taxes, state, county or municipal, which have been levied and assessed upon such land according to law.'

In Scott v. Gubler, supra, the relevant property was described by government lot number. The claimants had mistakently enclosed some neighboring property when they set their fences, encroaching .5 acre on the adjacent lot. This Court affirmed the trial court's determination that since all taxes levied by the county assessor on their lot had been paid by the adverse claimants, and the tax assessment description did not indicate precisely what property was being assessed, such payment constituted payment of taxes on all the land actually being occupied by them as their government lot, including the disputed .5 acre.

In Standall v. Teater, supra, which also involved a boundary dispute, we ruled that where assessment of property was designated as 'Tax 6, sec. 21, T. 6 R. 13' and the adverse claimants had paid all taxes on the property assessed to them, as a matter of law they had paid taxes on all of the land enclosed an occupied by them. To the same effect is Calkins v. Kousouros, 72 Idaho 150, 237 P.2d 1053 (1951), wherein the adverse claimant's property was assessed as 'Tax No. 3' and the county assessor had testified that he presumed that the property under fence was the owner's property.

The above cited cases are all similar in one respect, in that it was impossible to tell from the tax assessment record the precise of property being assessed, and thus we were able to hold that where the adverse claimants had paid all taxes on property assessed to them, they had paid taxes on the land adversely possessed. In contrast, the tax assessment sheets which were admitted into evidence in this case indicate that the property owner is taxed according to the amount of land owned, although that land is not precisely described. Flynn was apparently assessed separately on each of his 100 foot parcels, and the documents in evidence relate only to his northern 100 feet which border on the overlap strip in dispute. These assessment sheets describe that parcel as 'Part NENW .50 acres Sec. 11.' If Flynn...