Kahl v. Schmidt

• Decision Date: 06 February 1899
• Citation: 78 N.W. 204,107 Iowa 550
• Parties: KAHL v. SCHMIDT.
• Court: Iowa Supreme Court

107 Iowa 550

78 N.W. 204

KAHL

v.SCHMIDT.

Supreme Court of Iowa.

Feb. 6, 1899.

Appeal from district court, Crawford county; S. M. Elwood, Judge.

April 27, 1876, the plaintiff bought the west 120 acres of the N. 1/2 of section 5, township 84, range 39, in Crawford county. The north half of the section contained 347.36 acres. In March, 1883, the defendant bought the south half of the east 227.36 acres of the north half of said section. Both parties have, since their respective purchases, owned and occupied the land thus conveyed to them. In 1881, while defendant was occupying the land now owned by him, the parties caused a survey to be made by the county surveyor, to ascertain the line, and a line was fixed by the surveyor on which the parties built a fence, which has marked the line of their occupancy since that time. Later, the defendant became convinced that the line thus marked was not the correct one; that it is too far west; and, upon his making such a claim, plaintiff brought this action to establish his title to all land east of the line fixed by the surveyor. The defendant claims that he owns 4 1/2 or 5 acres of land west of the line so fixed, and the issues are such that the rights of the parties thereto are to be determined. The district court found for the defendant, and the plaintiff appealed. Affirmed.J. P. Conner and T. J. Garrison, for appellant.

Shaw, Kuehnle & Beard, for appellee.

GRANGER, J.

Some undisputed facts are: That the north half of section 5, in question, contains 347.36 acres, and that plaintiff purchased 120 acres on the west end of the half section, and that there remained of the north half of the section 227.26 acres, of which the defendant bought the south half, so that each purchased a definite number of acres. It will be seen that the half section overruns the regulation measurement by 27.36 acres. If the line fixed by the surveyor in 1881 is to be established as the boundary line between the parties, and the same rule should obtain between plaintiff and the owner of the north half of the 227.36 acres, plaintiff will have 129 acres of land, or 9 acres more than he purchased, and each of the others will have 4 1/2 acres less than he purchased. There is no pretense in the case but that, if the line of 1881 is preserved, the result will be as stated. The theory on which plaintiff claims he should have the additional land is that, prior to 1881, he claimed that he owned land still east of where the line of 1881 was fixed, and he really did then occupy land east of that line. Defendant thought otherwise, and wanted the land surveyed, and a survey was made resulting in the line being fixed as we have stated. On the line so fixed, the surveyor set a stone, and the parties planted a willow tree, and there the fence was built about November, 1884, and this action was commenced in March, 1894. As to the location of the line so fixed, there is no dispute. Since then, the parties have occupied the land with that as the dividing line. Plaintiff claims that the establishment of the line was the settlement of a dispute as to the line by agreement, and that the occupancy of the land in question since March, 1883,--more than 10 years,--under claim of title, gives him a title by adverse possession. On the other hand, defendant maintains that there was no agreement to fix that as the line, but that both parties occupied the land under a mistaken belief that the line, as located, was the correct one, neither party ever intending to claim more than the number of acres purchased by him. The practical dispute in the case is whether the facts bring it within the rule that will give title by prescription. In Heinrichs v. Terrell, 65 Iowa, 25, 21 N. W. 171, a rule is stated as follows: “Where a division line is agreed upon by persons owning adjoining real estate, and possession is taken in accordance with such agreement, we think such possession must be regarded as adverse from the time possession is taken; and, if so held and continued for the period of ten years next succeeding, it will ripen into a perfect title, binding upon the parties and those claiming under them.” It is under this rule that plaintiff claims title. The rule is not questioned by defendant, but it is said the facts do not show adverse possession, in that there was never an intention by plaintiff to claim more than 120 acres, that being the amount of his purchase. The following is a part of plaintiff's testimony: “When I commenced farming, I supposed the line of...