Jordan v. Ferree

• Decision Date: 07 April 1897
• Parties: JORDAN v. FERREE ET AL.
• Court: Iowa Supreme Court

101 Iowa 440

70 N.W. 611

JORDAN

v.FERREE ET AL.

Supreme Court of Iowa.

April 7, 1897.

Appeal from district court, Wapello county; F. W. Eichelberger, Judge.

The plaintiff commenced an action at law to recover damages alleged to have been caused by the defendants, J. D. Ferree and T. E. Muir, in so grading a lot as to injure an adjoining one owned by her. That action was consolidated with one brought by Ferree to enjoin her from inclosing as her own a strip of ground lying on the boundary line of the two lots. Thereafter all the issues relating to that strip of ground were transferred to equity for hearing, and the trial of the remaining issues was continued. There was a hearing of the equitable issues, and a decree which awarded to the plaintiff the ownership of the ground in controversy. From that decree the defendants appeal.Work & Lewis, for appellants.

W. W. Cory, for appellee.

ROBINSON, J.

1. The plaintiff is the owner of lot numbered 1 of Godfrey's subdivision of the west half of outlot numbered 29 in the city of Ottumwa, and the defendant Ferree owns lot numbered 2 of the same subdivision. In the year 1846 a portion of the W. 1/2 of the S. W. 1/4 of section 19, in township 72 N., of range 13 W., was platted into outlots, among which were outlots numbered 26, 27, 28, 29, and 30. In the year 1869, George Godfrey, in whom the title to the west part of outlot 29 was then vested, subdivided it into two equal parts, of which the north part was numbered 1, and the south part was numbered 2. They extended lengthwise from east to west, were bounded on the west by Court street, and occupied high ground, which sloped southward; lot 1 being higher than lot 2. After the subdivision was made, Godfrey conveyed lot 1 to a man named Stebbins, who built a fence on or near its south boundary line. That fence extended from the east end of the lot westward two-thirds of the distance to the street. Godfrey built a stone wall on the west end of lot 2. About the year 1876 the plaintiff purchased lot 1 of Stebbins, and has occupied it since that time as a homestead. In the same year, Godfrey sold lot 2, and in the year 1891 the defendants became its owners, and in July, 1892, Muir conveyed his interest therein to Ferree. Before that was done, and while they owned the lot together, they removed a quantity of earth from it; and when they had completed the grading the west part of lot 2 was 18 feet, and the east part about 6 feet, lower than the corresponding parts of lot 1. Court street is 28 feet lower than lot 1, which is terraced back from the street. After the defendants had graded lot 2 the plaintiff constructed a stone retaining wall on or near the south boundary line of her lot. She now claims to own a strip of land south of that wall extending along the south side of lot 1 4.8 feet wide at the east end of the lot and 3.59 feet wide at its west end. The district court found that the strip thus described is a part of lot 1, and adjudged the title thereto to be in the plaintiff. Much evidence to establish the boundary line between lots 1 and 2 has been submitted. Numerous surveys have been made, and a number of surveyors have testified in regard to different surveys, monuments, courses, distances, and boundary lines. To set out the evidence thus given, or any portion of it, would be wholly useless. It is enough to say that different surveys are conflicting, and that the surveyors do not agree as to the true boundary line. A careful examination of all the evidence satisfies us, however, that the line shown by the original plat, and the courses and distances given therewith by the surveyor, is the one claimed by the plaintiff and established by the district court. That is shown by several careful surveys, which were based upon well-established corners in the government surveys which have long been regarded and treated as correct, and used in improving that part of the city. While recognizing the fact that there are some discrepancies between different surveys, hard to explain, we are satisfied that the surveys as a whole sustain the conclusion of the district court. But it is said that the plat of the subdivision does not correctly represent the original survey as actually made, and the line which was in fact located by the surveyor. That is the true line. Therefore, if there is disagreement between the survey actually made and the plat, the former must control. Root v. Town of Cincinnati, 87 Iowa, 202, 54 N. W. 206, and cases therein cited. The defendants, in support of the claim that the actual survey and the plat do not agree, insist that the fence built by Stebbins and the north end of the wall constructed by Godfrey are shown to have been placed on the line in dispute when its true location was known, and the surveyor's stakes were still to be seen. There is much in the record to support that theory. Godfrey was present when the survey was made, and thinks he built the stone wall within a year from...