Mulder v. Stands
| Decision Date | 14 December 1950 |
| Docket Number | No. 7629,7629 |
| Parties | MULDER v. STANDS et ux. |
| Court | Idaho Supreme Court |
Anderson & Thomas, Boise, for appellant.
Frank E. Chalfant, Boise, for respondents.
Appellant, plaintiff below, brought this action to quiet title to, and eject respondents, defendants below, from a strip of land claimed by the appellant.
The land in dispute is 32.15 feet wide on the south and 31.04 feet wide on the north, and runs north and south through Lot 1, Block 17, Scott's Subdivision, Ada County. This lot is bounded on the north by Emerald Street, on the east by Roosevelt Street (Boise), both streets being fifty feet wide, and is bounded on the west and south by alleys sixteen feet in width.
These alleys have not been opened to or used by the public, and both parties, in constructing fences around the exterior boundaries of their respective land, included within the area so fenced to the center of each alley adjacent thereto.
All of said Lot 1 was formerely owned by John A. Nannie A. Balay, now deceased. On January 31, 1935, Balay and wife conveyed the west two acres of said lot to Virgil J. and Iva O. Ridenour, and they, on May 20, 1944, conveyed the said west two acres to respondents, Neal R. and Elva E. Stands. On July 15, 1936, Balay and wife conveyed all of Lot 1, except the west two acres to appellant. In December, 1935, Balay and Ridenour measured from the center of the alley on the west along the north boundary of the tract to a point 263.9 feet from the center of the alley and constructed a fence from that point running north and south across the lot. This fence was of substantial construction; the corner posts were set in concrete; the posts were spaced twelve feet apart; a strand of barbed wire was strung along the bottom of the posts, woven wire along the middle and three strands of barbed wire, properly spaced, along the top.
This fence, supposedly dividing the west two acres from the east part of the tract, remained in place until March, 1949, the respondents and their predecessors in interest occupying and using the land west of the fence, and the appellant and predecessors in interest the land east of the fence. In April, 1943, a lessee of the then owners of the west two acres constructed a new dividing line fence thirty-one feet east of that originally constructed and the appellant in June, 1943, tore this fence down.
In March, 1949, respondents tore down the original fence constructed in 1935, and using the material from it, constructed a fence across the land claimed by the appellant, thirty-two feet east of the original line fence. Thereupon, appellant brought this action to determine the ownership of the land between the fence originally constructed and the one thus constructed by the respondents.
On issues framed, the trial court found the true boundary line to be the fence constructed in 1949, and dismissed the plaintiff's complaint. This appeal is from the judgment.
The appellant contends; first, that the land in dispute is part of his original purchase from Balay, he having purchased all the land except the west two acres of the tract in question; that if the whole tract as platted is measured to include the center of the street and alleys surrounding the same, it equals five acres and that by deed he purchased three-fifths of the tract and the respondents are the owners of two-fifths of the tract; second, that when Ridenour (respondents' grantor) bought the west two acres, he and his grantor, Balay, measured the land to the fence line as originally constructed, and established, by agreement, the fence as the dividing line; third, that he has used, occupied and enjoyed the land openly and adversely, claiming ownership for more than thirteen years subsequent to his purchase (1936) and that the original line fence above referred to has at all times been recognized and acquiesced in as the boundary between the two parcels of land.
If the land owned by the respondents is measured from the center of the alleys and the center of the street surrounding the same, the amount of land in respondents' tract would equal two acres and this is the criterion used in measuring the land by the grantor and grantee when the line fence was originally constructed in 1935.
The original line fence having been constructed by Balay and Ridenour (predecessors in interest) and measurement having been made by them from the center of the alley, it is appellant's further contention that by such acts, Balay and Ridenour construed the deed to mean two acres inclusive of abutting streets and alleys and that the facts and circumstances at the time of the original sale by Balay of the west two acres clearly demonstrate that in measuring the two acres the aim was to include half of the street and half of the alleys abutting the tract conveyed.
Conversely, respondents contend that the original fence was only temporary and was to be moved when the true boundary was determined.
When Balay sold...
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