Schmidt v. Williams

• Decision Date: 31 December 1921
• Parties: GUSTAV P. SCHMIDT and EMMA SCHMIDT, His Wife, Respondents, v. J. W. WILLIAMS and OLIVE E. WILLIAMS, His Wife, Appellants
• Court: Idaho Supreme Court

203 P. 1075

34 Idaho 723

GUSTAV P. SCHMIDT and EMMA SCHMIDT, His Wife, Respondents, v. J. W. WILLIAMS and OLIVE E. WILLIAMS, His Wife, Appellants

Supreme Court of Idaho

December 31, 1921

BOUNDARIES-ADVERSE POSSESSION-ESTOPPEL-INSTRUCTIONS-PROCEDURE.

1. In order for a boundary line established by a common grantor of lands on both sides of such line to become binding and conclusive upon the grantees, it must plainly appear that the land was sold and purchased with reference to such line and that there was a meeting of minds as to the identical tract of land to be transferred by the sale.

2. In order for one to obtain title to land by adverse possession such possession must be hostile as against the true owner and the world at its inception.

3. One who occupies land adjoining a partition fence which is built in ignorance of the true division line, under an agreement that the land shall be surveyed in the future and the partition fence then moved to the true division line does not occupy the land in hostility to the true owner.

4. It is not error to refuse to give a requested instruction when the proposition of law contained therein is sufficiently covered by other instructions given by the court.

5. It is not reversible error for the trial court to depart from the order of procedure indicated by C. S., sec. 6847, where no objection was interposed to the order of procedure adopted by the court and no request proffered to the court to follow the order indicated by the statute.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Wallace N. Scales, Judge.

Action in ejectment. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs to respondents.

J. F Ailshie and A. S. Hardy, for Appellants.

The evidence is insufficient to support the verdict and judgment. (Taylor v. Reising, 13 Idaho 226, 239, 89 P. 943; 9 C. J. 234; Zehner v. Castle, 27 Idaho 215, 148 P. 470; Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; Brown v. Brown, 18 Idaho 345, 110 P. 269; Idaho Land Co. v. Parsons, 3 Idaho 450, 31 P. 791; 9 C. J. 271; Lawrence v. Washburn, 119 Iowa 109, 93 N.W. 73; Buch v. Flanders, 119 Iowa 164, 93 N.W. 101; Turner v. Creech, 58 Wash. 439, 108 P. 1084; Holmes v. Judge, 31 Utah 269, 87 P. 1009; Columbet v. Pacheco, 48 Cal. 395; Carpenter v. Rose, 186 Ky. 686, 217 S.W. 1009.)

Refusal of court to instruct jury prior to argument was error. (C. S., sec. 6847.)

The court erred in refusing to give defendant's instruction No. 10. (Taylor v. Reising, supra; 9 C. J. 244, 245, sec. 197; 247, notes 22 and 23.)

Respondent is estopped from asserting title to this strip of land. He stood by and saw valuable improvements placed on the land by appellant and knew appellant was claiming the land as his and was then occupying and improving it. (Herman on Estoppel, sec. 735; Farber v. Page & Mott Lumber Co., 20 Idaho 354, 118 P. 664; Town v. Needham, 3 Paige Ch. (N. Y.) 545, 24 Am. Dec. 246; Orient Mining Co. v. Freckleton, 27 Utah 125, 74 P. 652; Newport Water Co. v. Kellogg, 31 Idaho 574, 174 P. 602; McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81.)

B. Auger, M. Reese Hattabaugh and F. E. Fogg, for Respondents.

"Where a line is established, as the evidence shows the division lines were established in this case, with the understanding that when a survey was made and a true line ascertained the parties would place their fences thereon, it would be most unjust and inequitable to hold that they had consented and agreed to make that line the true boundary line, when there was no evidence to that effect introduced on the trial." (Brown v. Brown, 18 Idaho 345, 110 P. 269.)

Payment of the taxes assessed upon land during the claimant's occupancy of it, is necessary to establish adverse possession. (Webb v. Clark, 65 Cal. 56, 2 P. 747; Ross v. Evans, 65 Cal. 439, 4 P. 443; McNoble v. Justiniano, 70 Cal. 395, 11 P. 742; McDonald v. Drew, 97 Cal. 266, 32 P. 173; Baldwin v. Temple, 101 Cal. 396, 35 P. 1008.)

"Statute makes payment of taxes as important an element as actual occupancy of the land for the purpose of gaining title by adverse possession, and burden is upon claimant to do acts required to create adverse title." (Cavanaugh v. Jackson, 99 Cal. 672, 34 P. 509; Dickerson v. Hansen, 32 Idaho 18, 177 P. 760; Brose v. Boise City R. & Terminal Co., 5 Idaho 694, 51 P. 753; Swank v. Sweetwater Irr. etc. Co., 15 Idaho 353, 98 P. 297.)

RICE, C. J. McCarthy, Dunn and Lee, JJ., concur. Budge, J., took no part in the opinion.

OPINION

RICE, C. J.

This is an action to recover possession of a triangular tract of land, 13.21 acres in extent, lying along the southerly boundary of the N. 1/2 S.E. 1/4 of section 5, Tp. 31 N., R. 2 E., Boise Meridian, in Idaho county. The plaintiffs recovered judgment and the defendants have appealed.

In June, 1910, the entire quarter-section was the property of the Bales-Jones Company. On June 23, 1910, the north half of the quarter-section was sold at public auction to Max Leishner, predecessor in interest of respondents. Thereafter the south half of the quarter-section was sold and conveyed to appellants at private sale. Testimony was introduced at the trial to the effect that in May, 1910, the Bales-Jones Company had caused a survey to be made for the purpose of designating the line dividing the north and south halves of said quarter-section, and that a post or stake, surrounded by a pile of rocks, was located to designate the east end of the division line and a stake or pole was wired to a fence to designate the west end. It is conceded that the west end of the division line, if so located, was north 369.6 feet of the true line dividing the north and south halves of the quarter-section. The tract in dispute lies between the true boundary line and that claimed to have been laid out by the Bales-Jones Company as above stated.

Appellants contend that the evidence is insufficient to support the verdict and judgment, in that it was shown that the common grantor of both appellants and respondents, while owner of the land, permanently erected monuments upon the ground at both ends of the division line for the purpose of locating a line between the tracts and sold the land to appellants and the predecessor of respondents with reference to the monuments and marks on the ground, and insist that such monuments and marks are conclusive upon the parties to this action.

Among other authorities, appellants rely upon the case of Taylor v. Reising, 13 Idaho 226, 89 P. 943, in support of that contention. The facts are very fully set out in the opinion in that case, and it is unnecessary to repeat them here. Under the facts in that case it was held that the purchasers were concluded by the boundary line established by a private surveyor. The concurring opinion very aptly stated the problem confronting the court in that case as follows: "The question resolves itself into this: What land did the plaintiff purchase?"

In the case of Herse v. Mazza, 100 A.D. 59, 91 N.Y.S. 778, it is said: "It does, however, appear that before the conveyances on either side were made by the common grantor, and while the defendants' grantor was in possession, but preceding the date of the conveyance, and at about the time when the plaintiff Ellen Herse purchased under a contract for a conveyance, one of the common grantors caused the now disputed line to be located by a surveyor and marked the boundary as so located. Lay, then in possession of lot 47, the title to which she subsequently acquired, and Herse, in possession of lot 46, acquiesced in such boundary so ascertained, and Lay moved back her building so that its west side lay upon such boundary then ascertained, and the possession of each conformed to such boundary for about ten years, and down to 1896. . . . This location as made upon the ground, and the acquiescence following, are conclusive upon the defendants, and this boundary must remain as then located, even if it was located erroneously, as might be subsequently determined. (Reed v. Farr, 35 N.Y. 113; Baldwin v. Brown, 16 N.Y. 359; Smith v. Faulkner, 48 Hun 186; Sherman v. Kane, 86 N.Y. 57.) The actual location then made, and with reference to which the parties contracted and took their titles on either side, will control, and is conclusive upon the question of the true location. (Van Wyck v. Wright, 18 Wend. (N.Y.) 158.) This does not rest upon any presumption of fact that the parties have agreed upon a different boundary than the deed boundary, but upon the conclusive presumption that they found and correctly located the deed boundary, and that they subsequently took title on either side under their deeds, which described their lands to that boundary, and that such boundary line, open, notorious, and plainly marked upon the ground, is the boundary referred to in their respective deeds. Clearly, it was the intention of both parties taking their title from Chamberlain to take to the boundary which he fixed and marked. That was the line referred to in their contracts for their conveyances, and the one which all parties understood to be the boundary between the lots. And it is a principle of most common application in the determination of boundaries, as well as in the construction of contracts, that the intention and understanding of the parties at the time of the contract or conveyance must govern, when ascertained."

See, also, Osteen v. Wynn, 131 Ga. 209, 127 Am. St. 212, 62 S.E. 37.

In view of the authorities above quoted, in order for the act of the common grantor in establishing a boundary line to become binding and conclusive upon the grantees, the tracts of land adjoining the line must not only have been sold...