Smith v. Pettijohn
| Decision Date | 17 October 1961 |
| Docket Number | No. 39265,39265 |
| Citation | 366 P.2d 633 |
| Parties | John D. SMITH, Plaintiff in Error, v. Ida B. PETTIJOHN, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where privity exists between successive occupants under color of title, successive periods of occupation may be united to each other to make up period required to obtain title by prescription.
2. When a person builds a fence on what he thinks is the boundary line between his and his neighbor's land and uses the land and occupies the land actually, openly, notoriously, exclusively and hostilely for fifteen years, the fence will be adjudged to be the boundary between the properties.
Appeal from the Superior Court of Comanche County; Robert S. Landers, Judge.
Action by plaintiff, Ida B. Pettijohn, to permanently enjoin the defendant John D. Smith from interfering with her possession of certain property in the City of Lawton, Oklahoma. From the judgment of the court granting a permanent injunction, the defendant appeals. Affirmed.
John B. Ogden, Oklahoma City, for plaintiff in error.
Dwight Malcolm, Lawton, for defendant in error.
Plaintiff commenced this action to permanently enjoin the defendant from interfering with her possession of certain real property. From a judgment in favor of the plaintiff, the defendant has perfected this appeal. The parties will be referred to as they appeared in the trial court.
Plaintiff alleged that she is now and has been for more than thirty years the owner of lot 7, block 24, Waldman Addition to the City of Lawton, Oklahoma, and all the premises known as 911 South 11th street in the City of Lawton, and enclosed by a net wire fence. That the defendant entered upon her property and removed a fence enclosing the north side of her property and threatens to construct a new fence which will include a portion of plaintiff's property and exclude her from the use and possession thereof. That the fence so removed has marked the north boundary of her property for more than thirty-five years and the defendant has no right, title or interest therein; that she and her predecessors in title have been in the uninterrupted, open, adverse, continuous, notorious, actual, hostile, visible and exclusive possession of the property for more than fifteen years.
Defendant's answer was in the form of a general denial and by way of cross-petition alleged he is the owner of the property located between the fence and the true line running between lots 7 and 8, and that plaintiff has no right, title or interest therein and that he be adjudged the owner thereof.
Plaintiff testified her father purchased lot 7 in 1923, and he and his family moved thereon in 1924; that at the time the lot was purchased a fence enclosed the purchased property; that the fence is on the north side of the lot and separates lots 7 and 8 and has not been moved since the property was purchased, but has been maintained at all times along the same line; that her father deeded the property to her and her two sisters in 1925 but her two sisters never claimed any interest therein and in 1950 deeded whatever interest they may have had to her; that she repaired the fence in 1934 and nothing has been done to it since then; that she has honeysuckle and roses growing on the fence; that about five years prior to the questioning of her title by defendant, she had a sewer line laid along the north side of her house and within the disputed area; that the defendant was present when the ditch was dug and the pipe installed and made no objection; that defendant's mother, who deeded the property to him in 1956, never made any claim to the property in dispute; that a few days before this action was commenced the defendant demanded that she tear down the fence and notified her if she did not do so, he would take it down and on July 28, 1959 he did tear it down.
The plaintiff produced the testimony of three persons who had knowledge of the existence of the fence; one had such knowledge for 37 years, one 26 years and one 23 years and all testified that the fence had never been moved between the time first observed and the time it was removed in 1959.
The defendant's mother testified she and her husband bought lots 8 and 9 in 1920; that the fence on the south side (the north side of plaintiff's property) was there and the grantor told them the south fence was about eighteen inches or two feet north of where it should be. That she repaired the fence in 1922 and in 1927 she built a new fence along the same line and in 1934 the plaintiff tore that fence down and built another one on the same location; that when plaintiff built the new fence in 1934 she told plaintiff the fence was not on the true line and that it included a portion of lot 8; that plaintiff denied the fence was not on the true line between lots 7 and 8; that she had the property surveyed in 1943 and placed a tie on the correct property line which was south of the fence. However, this tie was placed outside the enclosure to the east of the property line and the tie stayed there until about 1950. The witness did not testify that she served any notice on the plaintiff of the survey to be made; she did not testify she told plaintiff the survey had been made or that any tie had been set showing the true line between lots 7 and 8. That she claimed the portion south of the fence to the true line of lot 7, had always claimed it and always told plaintiff she claimed it.
Defendant testified his mother deeded the property to him in 1956; that in 1959 he contracted to have his property fenced but the people with whom he was contracting suggested he have a survey made so the fence could be put on the true dividing line. That he had always known the fence enclosed part of lot 8 and the survey made in 1959 definitely disclosed the true north line of lot 7 and the south line of lot 8. Defendant introduced army discharge showing service from February, 1941, to October, 1945.
The plaintiff in rebuttal testified she knew nothing of any...
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WRT Realty, Inc. v. Bos. Inv. Grp. II, L.L.C.
...notoriously, exclusively and hostilely for fifteen years, the fence will be adjudged to be the boundary between the properties.Smith v. Pettijohn, 1961 OK 246, ¶ 0, 366 P.2d 633 (Syllabus 2) (finding a fence existing when adverse claimant purchased the property constituted the boundary). Ac......
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Bank of Am., N.A. v. Unknown Successors of Sarah Jane Lewis, Deceased, & Padgett Dev. Co.
...periods of occupation may be united to each other to make up [the] period required to obtain title by adverse possession.” Smith v. Pettijohn, 1961 OK 246, ¶ 0, 366 P.2d 633 (court syllabus). We find no gap in the evidence of adverse possession presented by Woodliff.J. Conclusion–Adverse Po......
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Bank of Am., N.A. v. Unknown Successors of Sarah Jane Lewis
...periods of occupation may be united to each other to make up [the] period required to obtain title by adverse possession.” Smith v. Pettijohn, 1961 OK 246, ¶ 0, 366 P.2d 633 (court syllabus). We find no gap in the evidence of adverse possession presented by Woodliff.J. Conclusion–Adverse Po......
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Bank of Am., N.A. v. Unknown Successors of Sarah Jane Lewis, Deceased, & Padgett Dev. Co.
...periods of occupation may be united to each other to make up [the] period required to obtain title by adverse possession." Smith v. Pettijohn, 1961 OK 246, ¶ 0, 366 P.2d 633 (court syllabus). We find no gap in the evidence of adverse possession presented by Woodliff.J. Conclusion - Adverse ......