Lewis v. Smith
| Decision Date | 21 May 1940 |
| Docket Number | 29500. |
| Citation | 103 P.2d 512,187 Okla. 404,1940 OK 276 |
| Parties | LEWIS v. SMITH. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 11, 1940.
Syllabus by the Court.
1. Where adjoining landowners occupy their respective premises up to a certain fence line which they mutually recognize and acquiesce in for a long period of time, usually the time prescribed by the statute of limitations, they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one.
2. The period of possession of an ancestor may be tacked to that of a true heir for the purpose of establishing continuity of possession.
Appeal from the District Court, Washita County; W. P. Keen, Judge.
Action by C.J. Lewis against Ray Smith to enjoin him from interfering with a fence existing between their respective lands, which turned into an action to quiet title. From a judgment in favor of the defendant, the plaintiff appeals.
Judgment reversed, and cause remanded for further proceedings.
Thos Hudgens, of Weatherford, for plaintiff in error.
Meacham Meacham & Meacham, of Clinton, for defendant in error.
C. J Lewis appeals from a judgment of the district court of Washita County in favor of Ray Smith. Lewis instituted the action for the purpose of enjoining Smith from interfering with a fence existing between their respective lands. Lewis owned the southeast quarter and Smith the northeast quarter. Smith broadened the issues by asserting ownership and right of possession of a strip of land south of the fence to which claim Lewis joined issue by asserting ownership of all land south of the fence. So, the suit turned into an action to quiet title, with the matter of injunctive relief becoming incidental.
In 1911, Charles and Sam Smith owned two quarter sections as a unit. They divided the land that year, Charles, the father of Ray, taking the north tract, and Sam the remote grantee of Lewis, taking the south tract. In that year they erected a fence on the line running east and west across the half section, and this fence, as maintained and repaired by both men and their successors, has remained to the time of this litigation. In December, 1938, Smith caused a legal survey to be made, at which time it was learned that the line of the fence did not correspond to the true boundary line dividing the section east and west according to government survey. Actually the fence line on the east side began about two feet north of the true line, and as it proceeded westerly it veered to the north until it crossed the west boundary line about 126 feet north of the true line. Thus is involved a wedge shaped tract one-half mile long, 2 feet wide at one end and 126 feet wide at the other end. At the time the fence was first built Lewis was about 8 years old, and Smith yet younger. Lewis recalls when it was built (Sam Smith his remote grantor being his uncle) but did not hear and does not know of his own knowledge what the intentions or agreement of Charles and Sam Smith were. Ray says he was too young to recall the building of the fence, and knows nothing of the intentions or agreements of the Smith brothers. Therefore there was no evidence except of the erection and continued existence of the fence, and the use by the parties of the land up to their respective sides of the fence, upon which to determine the matter, and since it was not in conflict the matter virtually resolved itself into a question of law.
The findings and judgment read in part: "and it is the opinion of the court that said fence was so located for mutual convenience" and "It is ordered *** that plaintiff's petition for injunction be *** denied; that defendant be *** given possession of the parcel of land ***."
Lewis prefaces his argument by the following statement: "The plaintiff contended that the conduct of the owners of the two farms in jointly building and jointly maintaining the fence and acquiescing in it as their partition fence, had raised the presumption that they had agreed upon that line as their common boundary; and that if it was not on the line of the original survey, the presumption has arisen that the original line was not marked, and its location was not known to C. H. Smith and Sam Smith, and that they settled the matter by mutually agreeing upon the line where they built the fence."
This statement draws our consideration to a rather precise issue. The law covering the controversy herein is in a state of confusion, and much of the confusion in the decisions arises from a failure to keep in mind the variety of circumstances from which such litigation arises, and also arises from a tendency to treat simple factors found in these matters as independent rules for the governing of the whole of similar situations rather than matters of subordinate inquiry the co-incidence of several of which or the sum total of all being necessary to the answer sought. See Adverse Possession, 1 Am.Jur. 879, sec. 151, et seq.; 2 C.J.S. Adverse Possession, page 685, § 128, et seq.; West's American Digest, Adverse Possession, k43(1-4), and Hanlon v. Ten Hove, 235 Mich. 227, 209 N.W. 169, 46 A.L.R. 792, and supplement; and also Boundaries, 11 C.J.S. Boundaries, § 77, page 650; 8 Am.Jur. 797, sec. 72, et seq., and especially sec. 81, respecting confusion of "Agreement and Acquiescence"; Tripp v. Bagley, 74 Utah 57, 276 P. 912, 69 A.L.R. 1430, and Reynolds v. Wall, 181 Okl. 110, 72 P.2d 505, 113 A.L.R. 421.
As pointed out above, this case must be determined without the aid of a single explanatory word or deed of the Smith brothers, except the erection and maintenance of the fence. It does not appear whether it was built by agreement to be the location of the true boundary. It does not appear that the true boundary was known or unknown to them, or that they were in disagreement respecting the true line. It does not appear whether it was run in an effort to establish a practical line to be binding, or to establish a line of convenience, not to be binding, until the true line could be located later. The court's finding that it was a line of convenience is based wholly upon speculation, for there is no substantial evidence to prove it or to permit the inference. It does not appear that either of the Smith brothers knew of the mistake, if it was a mistake instead of a deliberately established line, nor did either of the parties hereto know of the deviation between the fence line and the true line until about the time of the survey in 1938.
Since plaintiff pitches his claim to the boundary upon acquiescence, he thereby eliminates agreement in the sense of a contract and relies wholly upon the acts of the various actors. Thus we have (1) the division of a unit of land; (2) the running of a fence between the divided portions of the unit deviating from the true line as established by government survey; (3) the continued maintenance of the fence for 27 years; and (4) the use by the respective parties of the land lying on their respective sides of the fence only. Is this sufficient to establish title by acquiescence?
We think it is. In 8 Am.Jur. 802, sec. 80, it is said: "It is well established that if adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for a long period of time ** usually the time prescribed by the statute of limitations *** they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one." This is virtually the language used in the statement of the rule respecting the establishment of boundary lines by acquiescence, 69 A.L.R. 1491, that is followed by an annotation of the decisions of the Federal Courts and of the courts of thirty-five states, and of Canada. Included among these decisions is that of Midland Valley R. Co. v Imler, 130 Okl. 79...
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