Tracy v. Newton
| Decision Date | 07 December 1881 |
| Citation | 57 Iowa 210,10 N.W. 636 |
| Parties | TRACY v. NEWTON AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Guthrie circuit court.
Action to quiet the title to a parcel of real estate two rods wide and eighty long in the E. 1/2 of the S. W. 1/4 of section 6, in township 79 north, of range 31 west. The plaintiff's claim is based on his actual and adverse possession for a period of twenty years under a claim of title. The defendants claim under a conveyance made by the plaintiff to E. B. Newton. Judgment for the plaintiff and defendants appeal.C. Haden, for appellants.
E. W. Weeks and Lyman Porter, for appellee.
We understand the facts to be: That in 1853 or 1854 the plaintiff purchased of the general government the S. W. 1/4 of section 6, in township 79 north, of range 31 west, and a patent was afterward issued to him therefor. At the time of the purchase it was agreed between the plaintiff and E. B. Newton a town should be laid out on a portion of the land, and such portion was to be conveyed to Newton. Such portion was selected, and the south line of the town was to be the plaintiff's north line, and such line was supposed to commence at a point forty-four rods north of the south-east corner of said south-west quarter.
The plaintiff, in 1855, conveyed to Newton a parcel of land commencing at the place aforesaid, and running thence north 80 rods; thence west 80 rods; thence south 80 rods; and thence east at the same distance to the place of beginning. The place or commencement was not accurately ascertained; that is, from the corner aforesaid. The distance was “stepped,” and it was supposed by the parties to be 44 rods. It has now been ascertained to be 46 rods. The land to be conveyed, however, was accurately designated, certain natural mounds aiding the parties in determining the south line of the proposed town. When the plaintiff made the conveyance he supposed there was left in the S. E. 1/4 of the S. W. 1/4 only 22 acres of land, and when he took possession in 1855 he supposed there were that number of acres only, and he paid taxes thereon. But he in fact took possession up to the south line of the town; and there are 23 instead of 22 acres in his possession. Such possession was taken under a claim of title, and the same has been continuous and adverse. Notwithstanding such is the case, the appellants claim he cannot recover, and Jones v. Hockman, 12 Iowa, 101, and Grube v. Wells, 34 Iowa, 148, are cited in support of such claim. In the former case the defendant was a setttler on what he claimed to be half-breed lands. Neither he nor those under whom he claimed entered into possession under a claim of title. The latter case is distinguishable. The defendant was the owner of lot 1 in Wood's subdivision in the city of Burlington, and entered into possession thereof. In so doing he set his fence about 15 feet over on the adjoining lot, which was unoccupied. It was found he only intended to take possession of lot 1, while he in fact took possession of a portion of the adjoining lot. He did not do so under a claim...
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