Kesler v. Ellis

• Decision Date: 10 June 1929
• Docket Number: 5164
• Citation: 47 Idaho 740,278 P. 366
• Parties: HOY KESLER, Appellant, v. GEORGE W. ELLIS and SUSANNAH M. ELLIS, Husband and Wife, Respondents
• Court: Idaho Supreme Court

278 P. 366

47 Idaho 740

HOY KESLER, Appellant, v. GEORGE W. ELLIS and SUSANNAH M. ELLIS, Husband and Wife, Respondents

No. 5164

Supreme Court of Idaho

June 10, 1929

BOUNDARIES-DIVISION LINE-ESTABLISHMENT BY ACQUIESCENCE-SUCCESSORS IN INTEREST-PAYMENT OF TAXES.

1. Where there is no express agreement as to location of boundary line, adjoining proprietors cannot question line which they have, for not less than five years, recognized as correct line between their properties.

2. Where each of parties constructed portion of division fence and occupied, cultivated, pastured and farmed lands on each side of line up to line so established for more than eight years, parties acquiesced in their location of division fence.

3. One in occupancy of public lands, agreeing upon particular boundary line between lands occupied by him and those occupied by another, is bound by his agreement after he acquires title from United States to land so occupied by him.

4. Acquiesence of an adjoining owner in boundary line is binding upon his successors in interest to same extent as he is bound thereby.

5. Where parties constructed division fence and acquiesced in line so established for more than eight years, defendants paying taxes on property as described in conveyances to them paid taxes on land in their possession, since a finding as to an agreed boundary has effect of extending and diminishing limits of deeds to include and exclude parcel of land in dispute.

APPEAL from the District Court of the Fifth Judicial District, for Caribou County. Hon. Robert M. Terrell, Judge.

Action to quiet title. Judgment for defendants. Affirmed.

Judgment affirmed, with costs to respondents.

C. E Melvin, for Appellant.

Where both parties have equal means of knowledge of the true line each has a right to assume that the other will know that he stood upon his right, and in pursuance of that assumption may erect an ordinary fence without renouncing title or warranting the other in supposing that he renounced title beyond it, if he should turn out to have a title by deed. ( Iverson v. Swan, 169 Mass. 582, 48 N.E. 282; Maye v Yappen, 23 Cal. 306; 9 C. J. 242.)

D. K. McLean, for Respondents.

Parties acquiescing in boundary lines for the statutory time, or by conduct fixing such lines, are estopped from saying they are not the true lines. Where a division line has for the statutory period been treated as the true line, it cannot be disturbed. (Idaho Land Co. v. Parsons, 3 Idaho 450, 31 P. 791; Urquide v. Flanagan, 7 Idaho 163, 61 P. 514; Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; White v. Spreckels, 75 Cal. 610, 17 P. 715; Young v. Hyland, 37 Utah 229, 108 P. 1124; Holmes v. Judge, 31 Utah 269, 87 P. 1009; Bowers v. Ledgerwood, 25 Wash. 14, 64 P. 936.)

VARIAN, J. Budge, C. J., Givens and Wm. E. Lee, JJ., and Baker, D. J., concur.

OPINION

VARIAN, J.

This is an action to quiet title and involves a disputed boundary. The parties are coterminous owners of lands situate in section 26, township 9 south, range 42, E. B. M., in Caribou county. Plaintiff (appellant) brought this action to quiet title to the following land, situate in Caribou county, to wit: All that portion of the south half of the northwest quarter and the west half of the northeast quarter of section 26, township 9 south, range 42 east of the Boise Meridian, "lying and being between the south line of said premises and a certain fence erected thereon and north of said south line and running in an easterly and westerly direction, comprising about one and one-half acres, more or less." Defendants (respondents) answered, setting up ownership in the land lying immediately south, denying the ownership of plaintiff in the strip in controversy, and by cross-complaint set up title thereto in themselves. The cause was tried to the court without a jury, resulting in a decree in favor of defendants (respondents).

At all times mentioned in the evidence, the lands of each party were surveyed lands. George Shuler entered into possession of appellant's lands in 1914, and patent under the Homestead Act issued to him on August 19, 1919. Shuler conveyed to one Webb in March, 1924, who on November 3, 1924, conveyed to appellant Hoy Kesler, who has been in possession thereof from said date.

Defendants have been in possession of the northwest quarter of the southwest quarter of section 26, township 9 south, range 42, E. B. M., since April, 1910, and the northeast quarter of the southwest quarter and the northwest quarter of the southeast quarter of said section since December 26, 1919. The northwest quarter of the southwest quarter of said section was patented in 1900 by a predecessor in interest of defendants. The remaining eighty acres was patented prior to December, 1919, to one Joseph Kennedy, who conveyed to defendants on December 26, 1919. The lands of both parties are inclosed by a fence.

The record discloses that Shuler, patentee of plaintiff's land, and Kennedy, patentee of the easterly eighty acres immediately adjoining it on the south, now owned by defendants, while in possession of the said mentioned tracts, procured the division line to be run by a surveyor in 1916, and they reset an existing fence between their properties upon the boundary line then fixed by the surveyor; that both Shuler and Kennedy participated in the building of the division fence, which was wholly completed in 1917; that thereafter each occupied, cultivated and farmed his land up to the fence each year continuously for more than eight years, without objection from any source. The forty-acre tract owned by defendants lying immediately south of the westernmost forty, was patented in 1900, and acquired by defendants in 1910, who have ever since been in possession thereof. The division fence was erected in 1916 or 1917, and was recognized as the true boundary line by Shuler, patentee as aforesaid, and defendants, until Shuler conveyed to Webb in 1924, and by plaintiff until immediately prior to the commencement of this action, each occupying and farming their respective tracts up to said fence continuously each year for more than five successive years. No dispute existed as to the present location of the boundary line until just prior to the commencement of the present action by appellant. All of the lands of defendants were described on the tax-roll by government subdivisions, as described in the conveyances to them, and they have paid the taxes upon said lands, so assessed each year continuously for five years and down to the commencement of the present action. The fence remains upon the line on which it was constructed in 1916, and has not been moved. Both parties admit that the fence is not on the true line, but that the fence is north of the true line, and there is nothing in the record to show the exact location of the true boundary line, except that the pleading admits that such true boundary is south of the division fence.

As to the remainder of the boundary line, there is no direct evidence of an express agreement to establish the fence erected in 1916 or 1917, as the true boundary between the southwest quarter of the northwest quarter and the northwest quarter of the southwest quarter of said section 26. The testimony, however, discloses that its location was clearly acquiesced in by Shuler, occupant and later patentee of the first mentioned subdivision (and later by his successors in interest), and by defendant, who then owned the fee in the northwest quarter of the southwest quarter of said section, for nearly ten years prior to the institution of the present action. Apparently, though the record is obscure on this point, this line was established by Surveyor Wilson at the time he ran the line between the...