Meyers v. Johnson

• Decision Date: 08 December 1860
• Citation: 15 Ind. 261
• Parties: Meyers and Another v. Johnson
• Court: Indiana Supreme Court

15 Ind. 261

Meyers and Another v. Johnson

Supreme Court of Indiana

December 8, 1860

APPEAL from the Floyd Circuit Court.

The judgment is reversed, with costs. Cause remanded for a new trial.

T. L Smith and M. C. Kerr, for appellants.

(1) Counsel for appellants cited the following authorities Spaulding v. Warren, 25 Verm. R. 316; Jackson v Van Coolier, 11 Johns. R. 123; Jackson v Odgen, 7 Johns. 238; Jackson v. Douglass, 8 Johns. R. 367; Stuveysant v. Tompkins, 9 id. 61; Jackson v. Woodruff, 1 Cowen 276; Boyd v. Graves, 4 Wheat. 502.

OPINION

Worden, J.

Suit by the appellee against the appellants for trespass quare clausum fregit. Saam pleaded liberum tenementum. Issue. Trial by jury. Verdict and judgment for the plaintiff below.

Johnson and Saam were adjoining proprietors, and on the trial it became material to ascertain the boundary, or rather the division line, between them, and whether a certain fence was on the line.

The Court gave the following charge in this respect, viz:

"That fence might be in the right place in three ways: First. It would be in the right place if the true division line ran there. Second. Whether the true line ran where that fence stood, or not, if Johnson had held adverse peaceable possession for twenty years or more, before the defendants' entry, up to that fence, such peaceable adverse possession would give him a right up to that fence, although a correct survey should show that the original line ran elsewhere. Third. Even if the true line were somewhere else, and even if Johnson had not held peaceable possession up to the fence for twenty years before the defendants' entry, yet if Johnson and any former owner of the land adjoining, under whom the defendants claim, had at any time expressly agreed that the line, between the two tracts, was the fence going from the stake in the lane to the oak on the bank of the creek, then, by such agreement, that fence would become the line; and that agreement would bind, not only them, but all persons claiming under them, no matter where the original line really was."

The defendants excepted to the third proposition, and claim that it is not correct in the abstract, or, if correct abstractly that as applied to the evidence, it was erroneous, and had a tendency to mislead the jury. The evidence on the subject of an agreement as to the boundary is, that in 1854 or 1855, John Taylor, a surveyor, was called upon by one Hammond, who then owned the land now owned by Saam, and under whom Saam claims, to make a survey of his land, to ascertain the quantity in the tract; he supposing that he was taxed for a greater number of acres than there were in the tract. The surveyor did not run the lines as described in the deeds of the parties, but on going upon the land to make the survey, he was told by Johnson and Hammond that the fence stood on the line...