Miller v. Mills County

• Decision Date: 24 May 1900
• Citation: 82 N.W. 1038,111 Iowa 654
• Parties: MARY E. MILLER, Appellant, v. MILLS COUNTY, IOWA
• Court: Iowa Supreme Court

82 N.W. 1038

111 Iowa 654

MARY E. MILLER, Appellant, v. MILLS COUNTY, IOWA

Supreme Court of Iowa, Des Moines

May 24, 1900

Appeal from Mills District Court.--HON. A. B. THORNELL, Judge.

THE plaintiff is the owner of the E. 1/2 of N.W. 1/4 and the W 1/2 of N. E. 1/4 of section 21, township 72, range 42, Mills county; and the defendant, of the N. E. 1/4 of N. E. 1/4 of said section. In July, 1897, the defendant removed one hundred and eighty feet of the fence on the north end of the boundary, recognized since 1860, from sixteen to twenty feet to the west, and took possession of the intervening strip. This is an action to eject the defendant therefrom. Trial to the court, and from a judgment dismissing her petition the plaintiff appeals.

Reversed.

W. S Lewis and C. E. Dean for appellant.

Shirley Gilliland for appellee.

OPINION

LADD, J.

Between the forties is a hedge, which previous to 1897 formed the lower part of the division fence. This was set out by the defendant's grantor, Jesse Miller, in 1867, as close as possible to the east side of a board fence which had been erected by him along the entire line in 1860. At that time the government monuments at the northeast corner of the section and at the quarter corner to the west were intact, and stakes for the division fence were set with reference to them,--whether by measurement, does not appear. The hedge was trimmed and cared for by Jesse Miller and the county, which acquired title from him for use as a poor farm, about twenty years ago since being set out, and for at least thirty-one years the land has been occupied and cultivated up to that line. The plaintiff acquired the adjoining land in 1890 from Wright, who had been in possession as owner ten years. During these eighteen years the plaintiff and her grantor maintained the north portion of the division fence,--being of board and wire,--and during that time occupied and cultivated the land up to the division line so marked. Until April, 1897, no one had questioned the correctness of the boundary as indicated by these fences, save a suggestion by plaintiff's husband that the government line was east of them. At that time the county surveyor, while doing some work on the poor farm, was induced by the superintendent and plaintiff's husband to undertake to ascertain the line according to the government survey. He testified that he did not make a survey of the forties so as to fix all their lines and corners; that he ran a line between the sections, and though the center of section twenty-one, east and west, and then from a temporary corner, placed on the center line, run the north and south line between the forties. This was not chained, but he said: "I probably set up my instruments and took a snap shot." The superintendent testified: "We went to the southwest corner of section twenty-one, ran east to the road, then came back, running the line between Miller and other lands; then north and east to the road, and found the corner there. We then ran the line between the county's and Miller's land." The surveyor knew of no other survey, and evidently did not make use of the government field notes. It should be added that conveyances of this land and assessments have always been made by government subdivisions. In June, 1897, the defendant, through the superintendent of its farm, set the north one hundred and eighty feet of the fence to the west from sixteen to twenty feet on the line indicated by the survey, and this action was brought by the plaintiff to recover possession of the intervening strip.

I. It will be observed that the facts are not in controversy, and it may well be doubted whether a survey of this character furnishes any better evidence of the line established by the government than the location of the hedge and board fence by the parties making the division line, followed by long acquiescence therein. Case v. Trapp, 49 Mich. 59 (12 N.W. 908); Tarpenning v. Cannon, 28 Kan. 665. Indeed, it seems to be the settled doctrine in New York that the practical location and long acquiescence in a boundary line are conclusive, not on the ground that they are evidence of a parol agreement fixing it, but because they are proof that the location is correct,--of so strong a character as to preclude evidence to the contrary. Reed v. Farr, 35 N.Y. 113; Baldwin v. Brown, 16 N.Y. 359. In the last case it was said: "Acquiescence, in such cases, affords ground, not merely from inference of fact to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that a party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance." It should not be overlooked that there was no government survey in that state, and the reasons which obtain in support of these decisions have not the same weight when applied to conditions in this state. However, it may be safely asserted that all the authorities agree that acquiescence in a marked line, as forming the boundary, furnishes some evidence that it is the true line; its weight depending somewhat on the period of such acquiescence.

II. But, if it be conceded that this survey tended to fix the location of the government line as originally established, it does not follow that it should be regarded as the boundary between the coterminous owners. The preliminary fact always to be ascertained in cases of this character is not the location of the line according to the government survey, but the true boundary between the adjoining properties. Until this has been done, the issue of adverse possession is not raised; for, if the fence or monuments marking the divisions between them indicate the true boundary, neither is in the occupancy of land to which the fee is in the other. Only when the boundary up to which each has been in possession is found to be erroneous, and the true line ascertained, is the character of the possession of the intervening strip the subject of inquiry. It has long been the settled doctrine of this state that when this has been proven, and such possession is by mistake, and without intention to assert title thereto beyond the true boundary, if it should turn out to be a part of the adjoining owner's land the possession is not adverse; for, in the absence of title, or color thereof, the essential element of adverse possession [111 Iowa 658] --claim of right--is lacking. Grube v. Wells, 34 Iowa 148; Fisher v. Muecke, 82 Iowa 547, 48 N.W. 936; Goldsborough v. Pidduck, 87 Iowa 599, 54 N.W. 431; Skinner v. Crawford, 54 Iowa 119, 6 N.W. 144; Wacha v. Brown, 78 Iowa 432, 43 N.W. 269; Jordan v. Ferree, 101 Iowa 440, 70 N.W. 611. If, however, such possession, though taken by mistake, is with the intention to claim title to the division line, and thus, if necessary, acquire "title by prescription," it may ripen into title. Fullmer v. Beck, 105 Iowa 517, 75 N.W. 366; Doolittle v. Bailey, 85 Iowa 398, 52 N.W. 337; Heinrichs v. Terrell, 65 Iowa 25, 21 N.W. 171. In other words, the possession of the strip of land beyond the true boundary, taken by mistake, may or may not be adverse. It is not the mistake, but the presence or absence of an intention to claim title, that fixes the character of the entry, and determines the disseisin. Preble v. Railroad Co., 85 Me. 260 (27 A. 149, 21 L. R. A. 829); Wilson v. Hunter, 59 Ark. 626 (28 S.W. 419, 43 Am. St. Rep. 63); Watrous v. Morrison, 33 Fla. 261 (14 So. 805, (39 Am. St. Rep. 139). The necessity of such intent is questioned by many authorities; holding that the reasons which influence the entry are not material, provided it was under claim of ownership, and continued in the belief in its rightfulness. The cases are about equally divided, and will be found collected in a note to Finch v. Ullman (105 Mo. 255, 16 S.W. 863, 24 Am. St. Rep. 383).

III. Under either of these rules, however, the first inquiry always is, where is the true boundary between the tracts of land? And it may be remarked that there is nothing about the government surveys entitling them to reverence. The original purpose was to enable the government to dispose of the public domain in parcels accurately defined. That they abound in mistakes is notorious, and is evidenced in the reported decisions of nearly every state save the original thirteen. Nor are the ordinary surveyors quite infallible. Their successive surveys nearly always disagree. This, aside from frequent carelessness or incompetency, is inevitable, from the variations of the needle, and slight differences in measurements over uneven ground. Reference is had to the government survey as pointing out the lines by which the lands described in the patents passed from the government, and by which they are ordinarily transferred by deeds. But if the coterminous owners have adopted another line as their division line, and have occupied up to it and recognized it as such for a period of ten years, there appears to be no reason for not regarding it as the true boundary line, notwithstanding it is not...