Klay v. Kurvink

• Decision Date: 14 February 1912
• Citation: 134 N.W. 633
• Parties: KLAY v. KURVINK.
• Court: Iowa Supreme Court

134 N.W. 633

KLAY

v.KURVINK.

Supreme Court of Iowa.

Feb. 14, 1912.

Appeal from District Court, Sioux County; Frank R. Gaynor, Judge.

“Not to be officially reported.”

Action to enjoin the erection and maintenance of a division fence. Judgment for the plaintiff. The defendant appeals. Affirmed.C. A. Walhof and George T. Hatley, for appellant.

W. C. Leonard and Gerrit Klay, for appellee.

SHERWIN, J.

The plaintiff is the owner of the N. E. 1/4 of section 26, and the defendant is the owner of the N. W. 1/4 of the same section. The grantors of both plaintiff and defendant lived on their respective quarters in 1884, and during that year they agreed upon a division line between the quarters, and the plaintiff's grantor during the same year built about 70 rods of fence on the south end of the line so agreed upon, and in 1896 this fence was extended north to the section line. The plaintiff became the owner of the N. E. 1/4 by conveyance from his father in 1899, and the defendant became the owner of the N. W. 1/4 by purchase from Mrs. Smith in 1907. Mrs. Smith owned the land in 1881 and lived thereon from September of that year until early in 1888, when she moved therefrom, and from that time until the sale thereof to the defendant she rented the land; the defendant being her tenant for some 12 years before his purchase. In 1910 the fence viewers of the township were called upon to determine which parts of this division fence should be maintained by these parties, and they decided that the defendant should maintain the south half thereof. Thereupon he proceeded to build a new fence two rods east of the then existing fence, whereupon the plaintiff brought this action to restrain him from so doing, alleging in his petition the establishment of the line by agreement in 1884, and the acquiescence of the owners in said agreed line for more than 20 years.

[1][2] The defendant asked that the plaintiff be required to state whether the alleged survey at the time the original line was located in 1884 was made with intent to locate same on the line established by the government, and, further, whether the fence thereafter built was on the true government line. Defendant also asked that plaintiff be required to state whether the authority of John S. Smith to act for his wife, Rhoda A. Smith, in locating said division line, was oral or in writing. This motion was overruled, and we think properly so. A line may be established by agreement, or by acquiescence,...