State v. Vanderkoppel, 1780

• Decision Date: 13 March 1933
• Docket Number: 1780
• Parties: STATE v. VANDERKOPPEL, ET AL
• Court: Wyoming Supreme Court

19 P.2d 955

45 Wyo. 432

STATE v. VANDERKOPPEL, ET AL

No. 1780

Supreme Court of Wyoming

March 13, 1933

APPEAL from the District Court, Campbell County; HARRY P. ILSLEY Judge.

Action by the State of Wyoming against Tony Vanderkoppel, et al., to recover ownership and possession of lands.

There was a judgment for defendants and plaintiff appeals.

Affirmed.

For the appellant, the cause was submitted upon the brief of J. A Greenwood, Attorney General; Richard J. Jackson, Deputy Attorney General; George W. Ferguson, Assistant Attorney General; R. Dwight Wallace, Assistant Attorney General, all of Cheyenne, Wyoming.

The resurvey did not affect the title under lease of the parties. U. S. v. Co., 264 U.S. 206; Bentley v Jenne, 33 Wyo. 1; Porter v. Carstensen, 40 Wyo. 156. The fence was built in 1907 by John F. Cates on the line of the original government survey and he obtained title by patent. The original fence was thereafter rebuilt on another line where it stood for about twenty-one years. No question was raised as to it, until after resurvey, and even then it was not questioned by Vanderkoppel until about six months prior to the time he moved the fence, after it had stood for twenty-three years. Parties on the adjoining lands had acquiesced in the fence line as built by John F. Cates in 1907, and plaintiff's title is good under the doctrine of recognition and acquiescence. Carstensen v. Brown, 32 Wyo. 491; Carstensen v. Brown, 26 Wyo. 356; Porter v. Carstensen, 40 Wyo. 156. Plaintiff has title by adverse possession. Sec. 89-406; City of Rock Springs v. Sturm, 39 Wyo. 494; Bryant v. Cadle, Admr., 18 Wyo. 95, 2 C. J. 60-122; Abbott v. Perkinson, (Ky.) 139 S.W. 745; Ambrose v. Huntington, (Ore.) 56 P. 513. Plaintiff waives its right to a new trial and seeks a reversal of the judgment with directions to enter a judgment quieting its title.

The cause was submitted for the respondents upon the brief of Thomas A. Nicholas, of Gillette, Wyoming.

The burden is on plaintiff to establish its title. 19 C. J. 1151. Acquiescence must be by both parties to establish boundary by consent. Carstensen v. Brown, (Wyo.) 236 P. 517. The Vanderkoppel lands were not patented until February 14, 1917, and adverse possession could not be obtained while the tract belonged to the government. Porter v. Carstensen, 40 Wyo. 156. The element of mutual agreement was lacking as shown by the evidence. Possession must be active, open, notorious and adverse to establish prescriptive title. City of Rock Springs v. Sturm, (Wyo.) 273 P. 908. Where an inclosure is relied on to establish adverse possession, it must be sufficient to be a protection against outside interference. 2 C. J. 62. To establish a boundary line by recognition or acquiescence, the intent must be clear. Carstensen v. Brown, supra. Plaintiff failed to sustain the burden of proof. 2 C. J. 262. While Mrs. Potter did not answer, the Potter land was involved in the petition. The occupancy of the Potter lands was under a license and such a possession may be terminated at any time. McIlquham v. Wilkinson, 18 Wyo. 53. Cates never acquired title by possession. Carstensen v. Brown, (Wyo.) 185 P. 569. Where a line is recognized and acquiesced in through a mutual mistake, the parties will not be estopped to assert a true division line. The same rule applies where one of the parties is ignorant of the encroachment. 9 C. J. 245.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action to recover the ownership and possession of a strip approximately 191 feet wide, east and west, and 1320 feet long, north and south. The plaintiff claims that this property is in fact a part of the Southeast Quarter of the Northeast Quarter of Section 25, T. 50, R. 72, which land along with other land it acquired in 1919 as an experimental farm. The defendants claim that the strip above mentioned is in fact a part of the Southwest Quarter of the Northwest Quarter, otherwise known as Lot 2, of Section 30, T. 50, R. 71. Lot 2, aforesaid, joins the Southeast Quarter of the Northeast Quarter of Section 25 on the east, and the strip in dispute, accordingly, is a strip of land which divides ranges 71 and 72, the plaintiff claiming that it belongs to range 72 on the west, while defendants claim that it belongs to range 71 on the east. In other words, the boundary between these ranges is disputed. The trial court found in favor of the defendants, and the state has appealed.

The land owned by the state was settled upon as a homestead by John F. Cates about 1907. He received patent for the land on February 4, 1915. He sold the land to his father, John R. Cates, in April, 1916, who in turn sold it to the state by conveyance made November 10, 1919. The land owned by defendants was settled upon as a homestead by Claude F. Weese, a cousin of John F. Cates, who received a patent for it on April 14, 1917. By subsequent conveyances the ownership thereof was vested in the defendant Hitt, who, in turn, sold it under contract to the defendant Vanderkoppel.

John F. Cates, about 1907, constructed a fence on the east of his land, which appears to have been on a line west of that now claimed by the state to be the true line. The boundaries of the land were unknown. Cates employed no surveyor, and he testified in substance that the fence was built as a fence of convenience, not intended to represent the line to which he made absolute claim, and that he would have changed the fence to the true line, if and when it should become known. The testimony of John R. Cates is similar. Nor did Claude F. Weese have the land surveyed, and he too considered the fence of Cates merely a fence of convenience. In fact the whole neighborhood was uncertain as to the true line between ranges 71 and 72, and was hoping that this line might at some time be ascertained and settled by some definite authority. It seems, according to the testimony of Mr. Spaeth, who owned the south half of the Northeast Quarter of Section 25, T. 50, R. 72, and occupied Section 36 of the same township, that John F. Cates merely "hooked" on to the fence which he had constructed along the east line of his land. Spaeth had found the southeast corner of this township, but not the northeast corner of Section 36 thereof, and he stated that he did not pretend to build his fence according to the true line, but that it was merely a fence of convenience, although he thought that he put it somewhat west of the true line. When the state was about to purchase its land in Section 25, supra, in 1919, it employed a surveyor by the name of J. H. Harvey, who was not a witness in the case, and who, at the time, was county surveyor of Campbell County. He was employed to survey the land proposed to be bought, and was assisted therein by W. L. Quayle, a representative of the state. In making the survey the defendants, then in possession of the lands which they now own, were not notified of the intended survey. The state claims according to the line established by this survey, and which, according to the testimony of Mr. Quayle, is substantially that occupied by the fence constructed by Cates in 1907. Mr. Quayle testified that Harvey found a rock on the half section line on the western boundary of Section 25, supra; that he then surveyed east and found a corner on the range line between ranges 71 and 72, being the southeast corner of the Northeast Quarter of Section 25, T. 50, R. 72, and the southwest corner of Lot 2 above mentioned. But the witness did not examine the corners and was unable to state that they were true U.S. Government corners.

According to the testimony of Jesse E. Spielman county surveyor of Campbell County, W. T. Roberts, then county surveyor of that county, was called on, in 1915, to survey T. 50, R. 72, and located the line in dispute approximately where it is now claimed to be by the defendants. No corners on the east line of T. 50, R. 72 were found, except the southeast and the northeast corners of the township....