Lake, for Use and Benefit of Benton v. Crosser, 33121

• Decision Date: 21 February 1950
• Docket Number: No. 33121,33121
• Parties: LAKE, for Use and Benefit of BENTON et al. v. CROSSER et al.
• Court: Oklahoma Supreme Court

Page 583

216 P.2d 583

202 Okla. 582

LAKE, for Use and Benefit of BENTON et al. v. CROSSER et al.

No. 33121.

Supreme Court of Oklahoma.

Feb. 21, 1950.

Rehearing Denied April 4, 1950.

Syllabus by the Court.

A parol agreement, long acquiesced in, to settle a boundary between adjoining proprietors, being the result of an honest attempt to fix the true boundary and according to which they have marked the line agreed upon by building a fence thereon, and have actually occupied, will be held good, although the time has not been sufficient to establish an adverse possession.

Looper & Sturdevant, Oklahoma City, for plaintiffs in error.

Clarence Tankersley, Shawnee, for defendants in error.

DAVISON, Chief Justice.

This is an action for ejectment and to quiet title to a 35 acre tract of land in Pottawatomie County, Oklahoma, brought by Ernest R. Lake for the use and benefit of his grantees, Lola E. Benton and Gustava R. Rash. The case was tried to a jury resulting in a verdict and judgment for defendants. The facts are simple and present one question for determination, i. e.: the location of the boundary line between adjoining landowners.

On January 3, 1929, while the owner of the southwest 40 acres in the hereinafter designated section of land in said county, the plaintiff, Ernest R. Lake, joined by his wife, conveyed to one Rufus Hicks the: 'West half (W 1/2) of the Southwest quarter (SW 1/4) of the Southwest quarter (SW 1/4) of the Southwest quarter (SW 1/4) of section eight (8) Township eleven (11) North, range two (2) East containing 5 acres.'

This 5 acre tract was bounded on the south and west by public roads, but, at the time of the above conveyance the north and east boundaries were unmarked. As a witness at the trial, the plaintiff testified as follows:

'Q. At the time you sold that five acres was there a fence around the five acres, separating it from the balance of your forty acres? A. No; we had to establish that line.

'Q. Sir? A. We measured it out ourselves and put the fence.

'Q. When, now, was that with reference to the time it was bought? Was it afterwards or before? A. Somewhere in the next year; maybe in the summer. I don't remember exactly about it.

'Q. At the time that fence was built in 1929, or the year after it was bought, tell what was said, if anything, at the time it was built A. Well. I sold to Rufus----

'Q. That was Rufus Hicks? A. Yes; I sold to him, and we didn't want to get the surveyor our there, and just got a tapeline and measured it off ourselves, 330 and 660 feet, and he wanted to start from the fence line and I wanted to start from the middle of the road, and we argued about it, and he said he wouldn't have any room there. * * * '

The fence was then built along the line so established, which enclosed a strip of ground, approximately 28 feet in width, outside the north and east boundary lines of said 5 acres, as surveyed and marked by a surveyor shortly before the institution of this action, which was brought for the sole purpose of determining and quieting the title to this strip of land.

The said Rufus Hicks and his wife conveyed said property to Tom Michael who in turn conveyed to Hermie Crosser, both of said deeds describing the land practically the same as the above-quoted description except that there followed the description, the phrase 'contining five acres, more or less.' Hermie Crosser died in 1942 leaving his wife and seven children who are the defendants in this action. Rufus Hicks went into possession of this 5 acre tract of land including the 28 foot strip and he and his successors in title occupied the same at all times thereafter and were still occupying and using said strip of ground at the time this action was filed, just four days short of 15 years after the date of the deed from plaintiff to Hicks. Mrs. Crosser had an orchard and garden on the 28 foot strip at the time suit was filed.

After the land was conveyed to Hicks and the fence was built, nothing was said or done about it, nor was it questioned by either party as being the boundary line, until November, 1942, when plaintiff had the property surveyed, which survey placed the east and north boundary lines 28 feet inside defendants' fence. The plaintiff testified that, at that time, he told Mrs. Crosser the fence was only a temporary one and he wanted it moved. Her testimony was that he said nothing about it until shortly before filing suit.

On December 7, 1943, plaintiff conveyed to the above-named Benton and Rash the entire 40 acres less 'five acres described as the west half of the southwest quarter of the southwest quarter of the southwest quarter.' On December 22, 1943, plaintiff had another survey made and on December 31, 1943, he filed this action.

There are many reported cases and numerous annotations dealing with the question of the establishment of the boundary line between adjoining landowners, irrespective of the exact description contained in the conveyances. Although the reasoning varies in different jurisdictions, in the main, these cases reach the same general conclusion. One of two general situations exists in each of these cases i. e.: where the boundary line is acquiesced in by the adjoining landowners but one or both of said owners do not actively participate in its establishment; and where the establishment or marking of the boundary line is the result of the actions of both parties. Mere acquiescence, which is the distinguishing feature of the first mentioned category, usually must exist for a period of time 'equal to that fixed by the statute of limitations.' Thompson on Real Property (Permanent Edition) sec. 3308. Exemplary of this class of cases are those of Midland Valley R. Co. v. Imler et al., 130 Okl. 79, 262 P. 1067, 69 A.L.R. 1404; Lewis v. Smith, 187 Okl. 404, 103 P.2d 512, and Cornelison v. Flanagan et al., 198 Okl. 593, 180 P.2d 823.

The latter category above may be subdivided into two groups of cases, namely: 1st., those wherein both adjoining owners without any agreement as to its effect participate in marking what they think is the exact boundary line described in their deeds but a mistake is made as to the location; and, 2nd, those wherein the exact location is unknown but the owners mutually agree on the location of their boundary line though it may vary from the description in their conveyances. The case of Reynolds v. Wall, 181 Okl. 110, 72 P.2d 505, 113 A.L.R. 417, falls clearly within the first subdivision of this category and the length of time of occupation of the respective tracts by their individual owners is of no importance. Since there is no agreement between them that the line marked shall constitute the boundary, nor assertion on the part of one and acquiescence on the part of the other that such line is the boundary, irrespective of the true location as described in their deeds, there is no permanent establishment of it as a boundary line, either on the theory of executed parol agreement or of estoppel. Since the use is permissive no rights are obtained by prescription as in the case of Johnson v. Whelan et al., 186 Okl. 511, 98 P.2d 1103. The case at bar falls within the second subdivision of this category.

Here, the plaintiff and the defendants' remote grantor personally measured the five acre tract conveyed and established the boundary lines. Plaintiff's own testimony negatives any idea of a mistake on his part sufficient to bring it within the rule applied in the Reynolds case, supra. The verdict of the jury, which was reasonably supported by the evidence, makes it a determined fact that the parties agreed that the line located and marked by them and upon which the fence was built and maintained should constitute the actual boundary line between the two properties.

The rule applicable in such cases is stated by the Michigan Court in the following language: 'It has been held very generally, that when there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly with visible monuments or divisions, the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession.' Smith v. Hamilton, 20 Mich. 433, 4 Am.Rep. 398.

The facts in the instant case are somewhat stronger than those in the Michigan case above in that here the agreement was between grantor and grantee, while there, it was between persons who stood only in the relationship of adjoining landowners. In Tiffany on Real Property, 3d Ed., sec. 655, it is said: 'Not infrequently reference is made to the 'practical location,' by the parties to a conveyance, of the boundary or boundaries referred to therein. This expression refers to a designation of the line by agreement between the grantee and the grantor, the latter retaining the adjoining land, followed by possession in accordance therewith. * * * Where this location is accepted and acquiesced in, it is the true location and binding, without regard to the lapse of time.'

A very similar situation was heretofore before this court in the case of Roetzel v Rusch, 172 Okl. 465, 45 P.2d 518. In that case, the owner of four adjacent town lots constructed a hotel building on the two corner lots. Because of a mistake of the surveyor, the building encroached about 1 1/2 feet on the inside lots, according to the official plat of the town. Subsequently, the common owner of the four lots conveyed the two inside lots to the predecessor in title of one Rusch. Later he conveyed the two corner lots to Roetzel who as plaintiff brought suit to quiet title. Rusch filed an answer and cross-petition, alleging the encroachment and seeking ejectment and a decree quieting his title. The cross-petition was filed nine days prior to the expiration of fifteen years from the date of the first conveyance. Judgment was for cross-petitioner,...