Morrow v. Hall

• Decision Date: 17 March 1915
• Docket Number: 29460
• Citation: 151 N.W. 482,169 Iowa 534
• Parties: W. T. MORROW et al, Appellees, v. MARY E. HALL, Appellant
• Court: Iowa Supreme Court

151 N.W. 482

169 Iowa 534

W. T. MORROW et al, Appellees, v. MARY E. HALL, Appellant

No. 29460

Supreme Court of Iowa, Des Moines

March 17, 1915

Appeal from Davis District Court.--HON. FRANCIS M. HUNTER, Judge.

ACTION at law to determine a controversy over a division fence. Trial to the court without a jury. Judgment and decree for plaintiffs. Defendant appeals. Affirmed.

Affirmed.

Payne & Goodson, for appellant.

T. P Bence and C. W. Ramseyer, for appellees.

PRESTON J. LADD, C. J., EVANS and WEAVER, JJ., concur.

OPINION

PRESTON, J.--

1. Plaintiffs own the W 1/2 NE1/4 SE1/4, with other lands. One Feagins owns the twenty acres east of it. Defendant owns the SE1/4 SE1/4.

Plaintiffs allege that defendant is the owner of, and by mutual agreement bound to keep up, the east half of the fence between said tracts, and the plaintiffs the west half; the plaintiffs and defendant have owned said tracts of land more than ten years last past; and that the line of fence between said tracts has been marked by the line of an old rail fence for forty or fifty years, and is the true line between said tracts; and said fence was repaired and kept up by the respective owners ever since said rail fence was built, until about the fall of 1902, the defendant erected a wire fence about eight or ten feet north of the line of said old rail fence, and insists on said wire fence being the true line; that the line of the old rail fence between said tracts of land has been recognized and acquiesced in by the respective owners for more than ten years, and is the true line between said tracts of land; that said defendant refuses to remove her said wire fence, and refuses longer to recognize the line of the old rail fence as the true boundary. They ask that the line as alleged by them be decreed to be the true line.

Defendant says that the said tracts of land have been separated by a post and wire fence on the same line as that of the present fence of the defendant, which line extended on west from defendant's fence, and the fence of the defendant, and the line extending west from the same is the true line between said tracts, and the same has been recognized and acquiesced in as the true boundary line between the said farms by both plaintiffs and defendant, and plaintiffs' grantor, for more than ten years last past, and the same is the true and lawful boundary line between said tracts; and defendant says that plaintiffs have recently set their fence, which is the west half, some six or eight feet south of the line where it was formerly located, which former location was on a line with defendant's fence; and defendant says that her fence is on the true line and the plaintiffs' fence is not; neither has plaintiffs' fence been recognized as the boundary for ten years.

Both parties claim their wire fences are on the line of the old rail fence. The question is, which party had their wire fence on the line of the old rail fence built by one Small, father of the defendant, and Feagins, the father of one of plaintiffs, and to determine the true line in which both acquiesced.

It is a question of fact. There were quite a large number of witnesses and the evidence was conflicting. The cause is not triable de novo. The weight to be given to the findings of the trial court, under such circumstances, is well understood and has been settled by many decisions, as well as by the statute. We are ourselves satisfied, from a reading of the record, that the conclusions of the trial court are correct, and sustained by the evidence.

The findings were specific and we shall set out only so much thereof as seem to be important and controlling. In making his findings, the trial court used a plat which had been introduced in evidence. The court found that:

"Harrison Feagins was the owner of the entire Northeast Quarter of the Southeast Quarter for many years up to October 2nd, 1899, when he sold the West One Half to the plaintiff, W. T. Morrow, and executed to him a deed therefor, and about six years ago W. T. Morrow deeded said land to his wife, Lida A. Morrow, plaintiff.

"Mr. Small, father of the defendant, owned the land now owned by the defendant, for many years and to the time of his death, and the defendant purchased it in 1896 from the referees appointed to distribute his property.

"That after the defendant became the owner of her land, and before the plaintiffs became the owners of their lands, the defendant and said Feagins entered into a mutual agreement relative to the fences between said lands and thereunder, Feagins was to keep up the west twenty rods and she, the defendant, the east twenty rods thereof, and such arrangement prevails to this time between the parties plaintiff and defendant."

Forty-four years ago, Feagins, who then owned the north-east quarter of said quarter section, and Mr. Small, who then owned the southeast quarter of said quarter section, had a survey made of the boundary line between them from point "O" to point "E" on the plat ("O" is at the northwest corner and "E" the northeast corner of the southeast southeast) and during the same year built a rail fence approximately along the surveyed line, intending to place it on the exact boundary line between said points. By mutual agreement, Feagins constructed and owned the west forty rods, or west half, of said fence, and constructed a rail fence so that the south corners of the worm of the fence rested upon the surveyed line; and Small erected and owned the east forty rods, and constructed his rail fence so that the north corners of the worm rested upon the surveyed line. The worm of the rail fences was four and a half feet in width. Both of said parties recognized the boundary line to be along the south corners of the west forty rods and along the north corners of the east forty rods of the two worms of said fences, and acquiesced therein from the time said line was run and fences built to the death of said Small, and to the sale of above land to the plaintiffs; and at the time the plaintiffs purchased their land, and many years prior thereto, they had knowledge of said rail fence and of the fact that it had been recognized and acquiesced in as the true boundary line in the manner above set forth, and for many years prior to the time defendant purchased her said land; and at the time, she had knowledge of said rail fence, and the fact that it had been recognized and acquiesced in by her father and Feagins as the true boundary line between said tracts of land, in the manner above set forth.

That the defendant built a new wire fence along the east twenty rods between her land and the land of the plaintiffs, which was constructed in 1899, and claims that it was constructed on the line of the north corners of...