Odegaard v. Craig

• Decision Date: 26 September 1969
• Docket Number: No. 8530,8530
• Citation: 171 N.W.2d 133
• Parties: Ethel ODEGAARD, Respondent, v. Paul M. CRAIG and Lyda Craig, Appellants.
• Court: North Dakota Supreme Court

Page 133

171 N.W.2d 133

Ethel ODEGAARD, Respondent, v. Paul M. CRAIG and Lyda Craig, Appellants.

No. 8530.

Supreme Court of North Dakota.

Sept. 26, 1969.

Syllabus by the Court

1. A judgment in a boundary dispute action which directs that a survey be made to establish the boundary is a final judgment, and is therefore appealable.

2. The merits of a question which is moot will not be considered on appeal.

3. No action based upon adverse possession for the recovery of real property or for the possession thereof shall be maintained, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.

4. The burden of proving adverse possession by clear and convincing evidence is on the person alleging it.

5. A question not raised or considered in the trial court cannot be raised for the first time on appeal.

6. It is determined for reasons stated in the opinion that the boundary between plaintiff's and defendants' coterminous lands shall be established by a survey made by a registered land surveyor designated by the district court in accordance with Sec. 11--20--07 N.D.C.C. and the cost thereof borne equally by the parties hereto.

H. B. Knudson, Jr., Mayville, and H. G. Ruemmele, Grand Forks, for appellants.

Chauncey T. Kaldor, Hillsboro, and Stokes, Vaaler, Gillig, Warcup & Woutat, Grand Forks, for respondent.

COYNE, District Judge.

Plaintiff, Ethel Odegaard, the record title holder of the Northeast quarter, (NE 1/4) of Section Twenty-three (23), Township One Hundred Forty-five (145), Range Fifty-three (53), West of the Fifth Principal Meridian, sought to permanently enjoin defendants Paul M. Craig and Lyda Craig, the record title holders of the Southeast quarter (SE 1/4) of the same section, from trespassing and encroaching upon her property.

Defendants denied they are presently trespassing or encroaching upon plaintiff's property, and asserted the affirmative defense of adverse possession, and counterclaimed that their title to the Southeast quarter (SE 1/4) be quieted together with whatever portion of the Northeast quarter (NE 1/4) they may have acquired by adverse possession.

Basically, then, plaintiff's action to enjoin defendants, and defendants' counterclaim to quiet title, both enlisted the district court to settle a boundary dispute.

The trial court refused to grant injunctive relief to plaintiff, and was also unconvinced by defendants' evidence of adverse possession. To determine the boundary line between the northeast quarter and the southeast quarter the trial court directed that a survey be made by the county engineer in a manner not in accordance with Sec. 11--20--07 N.D.C.C., infra. From the judgment dismissing that portion of their counterclaim founded upon adverse possession and directing that the boundary be determined by a survey as aforesaid the defendants have appealed demanding a trial de novo in this court.

In the farming seasons of 1938 and 1939 defendants occupied both the northeast quarter and the southeast quarter as tenants. In the fall of 1939 plaintiff and her husband leased the northeast quarter. Plaintiff and her husband continued to lease the northeast quarter until June 2, 1943, on which date they purchased the leased premises. Defendants continued to lease the southeast quarter until November 16, 1943, on which date they purchased the premises they had been leasing. The conveyances in both cases were by quit claim deed from the United States of America. In 1938 while they were farming both quarters as tenants, defendants placed a fence between the quarters along a line they determined to be the boundary, and farmed the entire property in a north-south direction. After 1939 the northeast quarter was farmed in an east-west direction by plaintiff and her husband. While plaintiff indicates some doubt about the existence of the fence, defendants' testimony is that they had the fence removed in 1957. The testimony is conflicting as to the time and extent of the encroachment, if any, upon plaintiff's property subsequent to the removal of the fence. There is no agreement as to the exact location of the fence prior to its removal. Shortly after the commencement of this action plaintiff and defendants agreed in writing to resolve the litigation by a survey to be made apparently in accordance with Sec. 11--20--07 N.D.C.C. with the parties to share equally in the cost thereof. This survey was not made, apparently because of the expense involved. Thereafter plaintiff hired the county engineer to make a survey, but the surveyor's stakes were removed by defendants. Defendants' removal of the surveyor's stakes caused the trial court to hold that defendants should pay the cost of the survey directed to be made by the judgment from which defendants have appealed.

Initially it must be determined whether the judgment from which defendants have appealed is a final judgment. Plaintiff has argued that the accuracy of the survey directed to be made by the judgment is not an issue in this appeal, and has by implication thereby raised a question as to the finality of the judgment. Defendants' objection is to the manner in which the survey is directed to be made by the judgment. If the manner in which the survey is made is inaccurate, a priori the survey is inaccurate. An examination of the judgment shows that it is complete and certain, it determined and disposed of the entire cause, and nothing remained for determination by the trial court. It is, therefore, a final judgment from which an appeal may be taken.

30A Am.Jur. Judgments, Secs. 121, 122.

Defendants have argued that injunctive relief is not a proper remedy for securing possession of or trying title to real property. Plaintiff urges that this question is moot. We are in agreement with plaintiff. The injunction sought by plaintiff was denied and plaintiff has not appealed therefrom.

By virtue of Sec. 28--01--12 N.D.C.C. defendants' adverse possession, if any, of plaintiff's land could not have commenced prior to November 16, 1943, the date of the conveyance of the southeast quarter from the United States of America to defendants.

'When possession of tenant presumed to be possession of landlord.--Whenever the relation of landlord and tenant shall have existed, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy, or, when there has been no written lease, until the expiration of twenty years from the time of the last payment of rent, notwithstanding that such tenant may be acquired another title or may have claimed to hold adversely to his landlord. Such presumptions shall not be made after the periods herein limited.' Sec. 28--01--12 N.D.C.C.

Other North Dakota statutes pertinent to this action are the following:

'Actions for recovery or possession of real property.--Limitations.--No action for the recovery of real property or for the possession thereof shall be maintained, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.' Sec. 28--01--04 N.D.C.C.

'Presumption against adverse possession of real estate.--In every action for the recovery of real property or for the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed...