Hudson v. Erickson

• Decision Date: 21 March 1950
• Docket Number: No. 2441,2441
• Parties: HUDSON, v. ERICKSON et al.
• Court: Wyoming Supreme Court

Page 379

216 P.2d 379

67 Wyo. 167

HUDSON, v. ERICKSON et al.

No. 2441.

Supreme Court of Wyoming.

March 21, 1950.

P. W. Spaulding, Evanston, for appellants.

Clarence W. Cook, Evanston, for respondent.

BLUME, Justice.

This case involves an action brought by Tom Hudson as plaintiff, to quiet title to Lot 15 in Block 1 of the Fairview Addition to the town of Evanston. The defendants are Delbert A. Erickson, E. Marie Erickson, owners of an adjoining lot, J. O. Krege, former owner of Lot 15, and his unknown heirs, etc. J. O. Krege and his unknown heirs, etc. made default and judgment was rendered herein quieting title to the lot in question as to them. They will not hereafter be again referred to and plaintiff will be designated as such, and the Ericksons will be designated as the defendants. The court rendered judgment in favor of the plaintiff against the Ericksons and the latter have appealed to this court.

This case originates out of an unfortunate dispute between neighbors over the true dividing line between the respective lots occupied by them. The predecessor, in interest of the defendants, unfortunately constructed a home on the lot of the defendants close to the dividing line, leaving insufficient space to construct a cement walk of approximately 2 feet in width along the dividing line--a walk the convenience of which is readily appreciated. Defendants tried to buy a little space so they might construct this walk. Plaintiff refused to sell. So we are called on to apply the law as we find it to the facts in this case, although we could have wished that it had been made unnecessary for us to do so, particularly in view of the probably limited value of the property in dispute to plaintiff.

The petition herein is the ordinary petition in an action to quiet title. Plaintiff alleged the ownership of Lot 15 in Block 1 of the Fairview Addition above mentioned, and that the defendants claimed such interest therein, adverse to plaintiff. Plaintiff asked that title to the property be quieted in him. Defendants filed an answer alleging in part as follows: 'said defendants April 11th, 1936, became owners of and June 1st, 1936, went into possession of lot fourteen in Block one in the Fairview Addition mentioned in said petition. At the time thereof plaintiff was and ever since has been in possession of the lot fifteen mentioned in said petition and that the westerly line of said lot 15 is the easterly line of said lot 14, and said lot line then was and ever since has been marked on the ground by a stake and fence which at all times since and to now has remained in the same position. Said defendants at all times since said June 1st, 1936, to the time hereof have been in exclusive possession of said lot 14 extending to said lot line so designated by said post and fence and have in good faith claimed said post and fence to be the easterly line of said lot 14 and have at all times in good faith claimed ownership of and held such possession openly and exclusively of and adversely to all persons, including the plaintiff, and have erected and maintained valuable improvements on said lot 14 and to said easterly line thereof as so designated and paid taxes thereon. During all said times from June 1st, 1936, plaintiff has been in possession of said lot 15 and has acquiesced in said line between said lots 14 and 15 as so located and determined by said post and fence and has joined defendants in maintaining said fence.'

The block in question herein is bounded by Main Street on the south, by Front Street on the North, by First Street on the east and by Second Street on the west, with an alley in the middle running east and west. The lots in question herein are Lots 14 and 15, which face south on Main Street. The streets apparently are all 80 feet in width. The lot in the southwest corner of the block is numbered 12, followed, traveling east, by Lots 13, 14, 15, etc., so that Lot 14 is west of Lot 15. The lots are 40 feet in width and 100 feet in depth. Homes have been constructed on both Lots 14 and 15, and are separated by about 7 feet in width. The actual ground in dispute and litigated herein is a strip of ground west of a fence heretofore in 1938 constructed by plaintiff, with a width of 3 feet and 8 inches at Main Street on the south and 3 feet and 9 inches at the alley on the north, the plaintiff claiming that the true dividing line between Lots 14 and 15 is that distance west of the foregoing fence, and defendants denying that, but claiming that the fence is the true dividing line. This should enable the reader who is interested to construct a map, so as to better visualize the matter in dispute herein.

1. Establishment of Boundary Line.

The true division line between Lots 14 and 15 was surveyed and determined by Jehova Chapman, a Civil Engineer and Surveyor of 30 years standing, and at the time of the trial, and in other years, the civil engineer employed by the town of Evanston. His qualifications to testify as an expert in this case are admitted. He did not have a happy way of expressing his meaning. It appears that the Fairview Addition is in the eastern portion of the town of Evanston. It seems to commence with what is called First Street, and the streets of the town westerly are marked from First Street to Thirteenth Street. The addition seems to consist of four blocks. Stakes were apparently put at the lot corners at the time when the addition was laid out in 1892 but these stakes had disappeared. The witness mentioned three different monuments, one on Third Street to which he tied the line which he surveyed in the case at bar. Another monument is at the corner of First Street and Front Street, and about 320 feet distant from the lots in question here. The monument on Front Street and Twelfth Street is distant about 10 1/2 blocks from the lots in question here. The original town of Evanston apparently was laid out according to a monument in the center of the Union Pacific Railroad track, seemingly at about the place where the depot of the Railroad Company is located. But the witness did not tie the survey which he made to that monument. He testified in part as follows:

'Q. Mr. Chapman, I believe you said you were acquainted with Lot 15? A. Yes.

'Q. Have you ever surveyed that lot? A. Well, I surveyed it yesterday, the westerly line of 15, and I surveyed it again prior to that on July 7th, 1944.

'Q. And by your survey you have determined the property line between Lots 14 and 15 according to the official survey? A. Yes, sir.

'Q. I hand you what has been marked for identification as Plaintiff's Exhibit 1 (map) and ask you what that is. A. Well, that shows the division line between Lots 14 and 15 of Block 1, of Fairview Addition which tied into the monuments on the property line of the west line of Third Street.

'Q. And this map shows, does it not, the whole Lots 12, 13, 14 and 15 in that block? A. Yes.

'Q. This map is drawn to scale? A. Yes, sir.

(On Cross-Examination)

'Q. You say, Mr. Chapman, that you made this map according to the official survey? What do you mean by that? A. Well, we have established the official survey of the town on the original plat, showing the streets.

'Q. From what did you establish the official survey? A. From the monuments that have been set according to the way the town was originally laid out.

'Q. Now, what monument did you find that had any effect on the Fairview Addition? A. Well, there is a monument on the center line of Front Street, on the westerly line of First Street. That is, at the intersection of First and Front there is a monument.

'Q. Who set that monument? A. An engineer by the name of Aleman.

'Q. Who was he? A. A licensed engineer employed by the City of Evanston.

'Q. Do you know how he happened to set that monument in that place? A. No. He measured it very carefully.

'Q. How do you know he measured it very carefully? A. Because I have checked it twice myself.

'Q. Have you ever taken the distance shown on the plat of the Fairview Addition as to what Section it is in--how far it should be from Twelfth Street? A. If you take the distances from Twelfth Street from the plat and as the Fairview Addition is laid out, you will have it exactly as it is on that plat.

(By the Court)

'Q. 55. What is Twelfth Street with reference to this property? I don't get the connection.

Note: Discussion Between Court and Counsel.

'A. I tied this into a monument that was subsequently on First and Front, and this monument is on the intersection of Third and Main. The monument which this survey is tied to is the one that is on the westerly property line of Third Street.

(By Counsel for Defendants)

'Q. What did you tie the monument on Twelfth Street to? A. I used Aleman's survey becaused he surveyed the town and those monuments are as near accurately established as they possibly could be.

(By Counsel for Plaintiff)

'Q. Mr. Chapman, your surveys have been made by tying in with the established monuments? A. Established monuments put in in 1932. Those are the only established monuments we have.'

The remainder of the testimony of the witness related to the survey which was made of the lot and he testified in substance that the true line between Lots 14 and 15 is located, west of the fence in question here, a distance of 3 feet and 8 inches on the south at Main Street and 3 feet and 9 inches on the north at the alley.

Some of the testimony is rather obscure. Part of the answer to Question 55 is unintelligible. It can be explained only by the theory that he pointed to points on the map when he gave the answer. He testified that the original monuments established at the time when the Fairview Addition was laid out no longer exist. At one place the witness stated that he did not look for them. His testimony on this point is apparently contradictory. But the court could and doubtless did reconcile his testimony by construing the statement that he did not look for...