Horton v. Brown
| Decision Date | 19 December 1891 |
| Docket Number | 15,377 |
| Citation | 29 N.E. 414,130 Ind. 113 |
| Parties | Horton v. Brown |
| Court | Indiana Supreme Court |
From the Switzerland Circuit Court.
The judgment is affirmed.
J. T Ellis and F. M. Griffith, for appellant.
W. D Ward and J. A. Van Osdal, for appellee.
This was an appeal by the appellant from a survey to the circuit court. In that court an answer and cross-complaint were filed by the appellee, but subsequently the same were, on motion of the appellant, struck out. A trial before a jury resulted in a verdict and judgment for the appellee.
The questions we are called upon to consider are raised by the rulings of the court in admitting evidence, over the objections of the appellant, and in giving certain charges to the jury, and refusing to give others relating to the same questions of law ruled upon in the admission of evidence.
The parties were, respectively, the owners of several adjoining tracts of land bounded by the line, a portion of which is in dispute. By mutual agreement a survey to establish the boundary line was made by the county surveyor, both parties being present and assisting in making it. This appeal was taken nearly three years after the making of the survey.
The dispute on the trial as to the correctness of the survey appealed from was with reference to that portion of the line between two forty-acre tracts of land, being the north end of the line surveyed.
The evidence shows that the land along this line is very rough and hilly, and that no two of the several surveys made of the disputed lines are in exact agreement.
On the trial of the cause the court, over the objection of the appellant, permitted the defendant to show that after the making of the survey appealed from the parties were dissatisfied with the line marked out, and called in three of their neighbors to assist them in establishing an agreed boundary line; that a line on the south end of the surveyed line was staked off by the appellant, which gave to the appellant a portion of the land claimed by the appellee; that it was then agreed by both parties that each one was to hold the land on his side of the new line, thus marked out, and that this should settle all disputes between them as to their boundary lines that afterwards the appellant took possession of the land given him by the new boundary line, and continued to hold the same at the time of the trial, the parties having set posts and moved their fences to the agreed line.
The appellant objected to the introduction of this evidence:
1st. Because the plaintiff, by his attorney, had stated, in open court, in the presence of the jury, that the only line in controversy was the north end of the line, between the two forty-acre tracts, and that he was making no claim to any part of the line south of these tracts; and that the evidence offered related solely to a settlement of the line south of them, and in no way tended to establish the correctness of the line in dispute.
2d. That the evidence was wholly irrelevant and immaterial.
No objection seems to have been made to the evidence on account of the absence of any pleading setting up the matter proposed to be proven, and this may be accounted for by the fact that such pleadings had been, on motion of the appellant, stricken from the files of the court.
The appellant contends that the only question for trial was the correctness of the survey appealed from, and that questions of ownership, possession, or agreements concerning the disputed boundaries are foreign to the issues.
We think this comes within the reason of the rule laid down in Wingler v. Simpson, 93 Ind. 201, where it was held that evidence of occupancy under a claim of title for more than twenty years to a line, different from that fixed by the survey, was admissible. In that case the claim was made that such evidence would be proper in actions in ejectment or to quiet title, but not on appeal from a survey. The court says: ...
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