Morley v. Murphy
| Decision Date | 04 April 1917 |
| Docket Number | 31137 |
| Citation | 162 N.W. 63,179 Iowa 853 |
| Parties | HOWARD C. MORLEY et al., Appellees, v. MARK J. MURPHY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Monona District Court.--GEORGE JEPSON, Judge.
THIS case involves a controversy over a division line. Plaintiff claims the line by acquiescence. Decree for the plaintiff. Defendants appeal.
Affirmed.
Prichard & Prichard and D. M. Harper, for appellants.
Chas E. Underhill, for appellees.
Plaintiff claims to be the owner of the east 3/8 and the defendant claims to be the owner of the west 5/8 of the NE1/4 of the SW1/4 of Section 30, Township 84, Range 45, Monona County Iowa. The controversy here involves the dividing line north and south between these two fractional parts of this forty. Hereafter, for convenience, we will call plaintiff's land the east 15 acres, and the defendant's land, the west 25 acres.
Plaintiff's father, and grantor, obtained title to this east 15 acres from C. A. McWilliams, in the fall of 1896, and moved on in the spring of 1897, and he and his grantees have been in possession ever since. One Joseph P. Smith was the owner of the west 25 acres, and in 1896, sold it to defendant's grantor, Mary Murphy. Smith had owned and occupied this land for 18 years prior to the sale to Mary Murphy, and the defendant and his grantors, ever since. There is no controversy between these parties as to the ownership of the fractional parts hereinbefore described. The only question now between them is as to the dividing line that separates these tracts. To divide them, there must be a line of demarcation. The line in dispute is shown in the following plat:
[SEE PLAT IN ORIGINAL]
In this plat, the west line is the fence line, and is the one claimed by the plaintiff. The east line is where the line should be to give to each one the quantum of land called for by his deed. The plaintiff brings this action, and claims that the west line appearing upon the plat is the one that should be recognized as the dividing line, for the reason that, on this line, a fence was built more than 30 years ago, and that the fence was recognized and acquiesced in by both parties as the line dividing these two fractional parts of this forty. The plaintiff does not bottom his case on adverse possession, and apparently admits that, if the line is established at the fence, he gets more than 15 acres, and the defendant less than 25 acres. To separate or segregate any portion of land upon the surface of the earth from other lands requires a line of some sort to mark the point of separation. This is the purpose in establishing government corners and lines. Any portion of land may be separated by metes and bounds designated and pointed out. It may be separated by lines established and acquiesced in by adjoining owners for the statutory period. Within the lines so established the segregated land must be found. Defendant's land is between the east and west and north and south lines of his property. The plaintiff's land is also between the north and south, east and west lines of his property. It comes to us to settle the location of the east line of defendant's property and the west line of plaintiff's property, the line common to both. This line being found, it becomes the dividing line between the property. The defendant can claim only within his lines to this line on the east, and the plaintiff, only within his lines to this line on the west.
Our statute, Section 4228 of the Code of 1897, provides that, when one or more owners of land, the corners and boundaries of which are in dispute, desire to have the same established, they may bring an action in the district court of the county where such disputed corners or boundaries, or part thereof, are situated, against the owners of the other tracts which may be affected. In such proceeding, either party may, by proper plea, put in issue the fact that certain boundaries or corners are the true ones, or that such have been recognized and acquiesced in by the parties or their grantors for a period of 10 consecutive years.
Code Section 4233 provides that, if that issue is presented, the commissioners shall take testimony as to whether the boundaries and corners alleged to have been recognized and acquiesced in for 10 years or more have in fact been recognized and acquiesced in, and Code Section 4236 says:
"If it is found that the boundaries and corners alleged to have been recognized and acquiesced in for ten years have been so recognized and acquiesced in, such recognized boundaries and corners shall be permanently established.
It is apparent that this statute touching corners and boundaries acquiesced in, deals with a situation that may arise, in which, by reason of acquiescence, one party or the other may be given more or less than he would be entitled to under a strict recognition of the original boundary lines as established by the government.
It may be conceded that the government survey originally fixed corners and lines and boundaries by which the government divisions so created were recognized and known, and it may be conceded that one who buys according to government survey is entitled to all the land within the limits of the boundaries fixed by the government, whether this be more or less, in fact, than a strict measurement according to government subdivisions would give. Thus, if one buys the northwest quarter of a section, he is entitled to the possession of all the land within the boundaries of the original survey, as fixed by the government, whether it contains more or less than 160 acres. So it is with each of the government subdivisions. This would be his right under a deed describing land according to government survey.
It is apparent, however, that, under this statute, the right to claim the land within the limits of the government survey is invested in the purchaser. This right he may surrender or lose by his own conduct. If he acquiesces, for the statutory period, in a line dividing his land from others, different from the line of the government, he thereby creates for himself and against himself a line other and different from that which the government created, and he is bound by it, even though it in fact gives him less land than he would be entitled to if he had insisted upon his right to hold to the line fixed by the government. The statute so provides. Boundaries of land were originally fixed by the government survey. It is presumed that people bought according to the government survey. It is according to the government survey that the land originally passed from the government. The purchaser has the right to the lines and boundaries fixed by the government, if he so insists. It is also true that adjoining owners have a right to fix their lines and boundaries for themselves, and, when so fixed and acquiesced in for the statutory period, they become their lines and boundaries, without regard to where the lines and boundaries were originally placed by the government. If a controversy should afterwards arise between the parties touching the true line, of course the government line would, in the first place, control, nothing further appearing. But if the court finds that the parties have settled for themselves the lines and corners, and have acquiesced in them for the statutory period, the court leaves them where it finds them, and leaves the line at the point so shown to have been established by acquiescence. We...
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