Peyton v. Waters

• Decision Date: 11 January 1919
• Docket Number: 21,820
• Parties: ARTHUR PEYTON, Appellant, v. DAVE WATERS, Appellee
• Court: Kansas Supreme Court

177 P. 525

104 Kan. 81

ARTHUR PEYTON, Appellant, v. DAVE WATERS, Appellee

No. 21,820

Supreme Court of Kansas

January 11, 1919

Decided January, 1919.

Appeal from Lyon district court; WILLIAM C. HARRIS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TITLE AND OWNERSHIP--Boundary Lines--Land Inclosed by Fence--Adverse Possession. Where an owner allowed a part of his land to be occupied by a neighbor, who by his permission built a fence inclosing it with his own property, and after the death of such neighbor his widow continued in the occupancy of the tract so inclosed, knowing nothing of the agreement, and supposing that the fence stood upon the true line between the original tracts, the possession of the neighbor was not adverse, because of its having been permissive, and the possession of his widow was not adverse because she had no intention of asserting ownership beyond the actual boundary.

2. SAME--Rights of Successor in Ownership. In that situation, it is not necessary, in order to settle the question whether the widow's possession was adverse, to decide whether the license granted to her husband survived for her benefit.

3. SAME--Assertion of Ownership. The evidence held to support a finding that the widow never intended to assert ownership beyond the true boundary of her land.

4. SAME--Trial without Jury--Incompetent Evidence. The rule applied that the admission of incompetent evidence in a trial without a jury is not of itself a ground of reversal, where there was competent evidence to the same point.

5. SAME--Authority of Agent Not Shown. Because the authority of the agent of a landowner was not shown, it is held that the trial court properly rejected evidence of an agreement made by him with regard to a boundary line.

J. Harvey Frith, and Gilbert H. Frith, both of Emporia, for the appellant.

R. M. Hamer, and H. E. Ganse, both of Emporia, for the appellee.

OPINION

MASON, J.:

Arthur Peyton brought ejectment against Dave Waters for a strip of land lying between the north line of a government forty (fractional, described officially as a lot) and a line 18 feet south of it at one end, and 156 feet south of it at the other. The case was tried without a jury. Judgment was rendered for the defendant, and the plaintiff appeals.

1. The parties have good paper titles, the defendant to the quarter-quarter referred to and the plaintiff to the forty-acre tract lying north of it. In 1878 the owner of the north forty inclosed therewith the strip in dispute, by building a fence which was maintained until 1915, and during that period the plaintiff and those through whom he claims were in the possession of the land in controversy and thereby acquired title to it, provided their occupancy was adverse--which is the question at issue. In 1915 the defendant moved the fence and took possession of the strip.

The court found substantially these facts, among others: In 1878 the then owner of the south tract (one O'Bryne) permitted the owner of the north tract (one Mahaney) to build the fence referred to and to occupy the strip thus inclosed, for his convenience in making use of a spring situated thereon. This arrangement continued until the death of Mahaney in 1887. His widow and children succeeded to his title and continued in possession until 1901, when they conveyed it to the plaintiff. Mrs. Mahaney did not know of the arrangement between her husband and O'Bryne, but supposed the fence stood upon the line between the two forties.

These findings require judgment for the defendant. The possession of Mahaney, being permissive, was not adverse (2 C. J. 131), and whether or not after his death the permission given to him affected in any way the rights of his widow, who...