Norton v. Ferguson
| Decision Date | 14 December 1926 |
| Citation | 211 N.W. 417,203 Iowa 317 |
| Parties | BYRON NORTON, Appellee, v. DAVID FERGUSON, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 11, 1927.
Appeal from Carroll District Court.--M. E. HUTCHISON, Judge.
Suit in equity, to enjoin the defendant from moving a certain boundary-line fence and from constructing a fence so as to encroach upon the land claimed by the plaintiff. The trial court granted an injunction as prayed, and the defendant appeals.
Affirmed.
Brown McCrary and John E. Haltigan, for appellant.
W. C Saul and W. I. Saul, for appellee.
FAVILLE J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.
I.
During the course of the trial it appeared that plaintiff's wife held the legal title to the land in controversy, and she was substituted as plaintiff. Appellant complains of the order of the court in overruling appellant's objection to such substitution. The objection was without merit. The amendment was authorized under Section 11182, Code of 1924, and the court did not err in permitting it.
II. The appellee in his petition described the premises owned by him by governmental subdivisions, and also alleged that the appellant owned the adjoining premises, which were similarly described. The appellant contends that the appellee, having described the appellant's premises by the governmental subdivisions thereof, cannot claim that the boundary line between said premises is at any other place than upon the true line of the governmental survey. Appellant contends that the fence in controversy which the appellant undertook to build was to be located upon the true government line, as shown by the government survey, and that, because of the appellee's allegation that the appellant owns the land described by governmental description, there can be no question involved in this case except the mere question of ascertaining the location of the true line, as shown by the government survey, which the appellant contends is not disputed under the evidence. In this contention the appellant misconceives the true nature of this action. The action is not one brought to establish a lost boundary, under the statute. The appellee's contention is that, regardless of the location of the true government line, by reason of a long period of acquiescence in the maintenance of a fence the adjoining landowners have established a boundary line between the two tracts which they have maintained and acquiesced in as the boundary line for a long period of years, and that, therefore, said line so established and acquiesced in becomes the true line dividing the tracts, regardless of where the government line may in fact be located. In Davis v. Angerman, 195 Iowa 180, 192 N.W. 129, we said:
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