Trautman v. Ahlert

• Decision Date: 19 December 1966
• Docket Number: No. 8327,8327
• Citation: 147 N.W.2d 407
• Parties: Paul A. TRAUTMAN, Plaintiff and Respondent, v. Herman AHLERT, Jr., Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 407

147 N.W.2d 407

Paul A. TRAUTMAN, Plaintiff and Respondent, v. Herman AHLERT, Jr., Defendant and Appellant.

No. 8327.

Supreme Court of North Dakota.

Dec. 19, 1966.

Syllabus by the Court

1. Where rocks were removed from land and placed in a line at one side of the land, and such rock line was thereafter recognized as the boundary line between two pieces of land for more than 20 years by the coterminous owners, each possessing and using his respective land up to the rock line as a boundary, although it encroaches upon the land of one of the coterminous owners, such rock line becomes and is established as the boundary line between the lands by acquiescence.

2. Acquiescence in boundary line is binding on the parties thereto and those claiming under them; where successive adverse occupants hold in privity under the same title, time for maintaining action for possession may be computed from the date the cause of action accrued against the first adverse possessor.

3. Where a claim of right to ownership of a strip of land by adverse possession has ripened into ownership, the subsequent rental of the land of which the strip was formerly a part does not create a landlord and tenant relationship of the strip under Section 28--01--12, N.D.C.C., which provides the possession of the tenant shall be deemed possession of the landlord.

4. The burden of proof is on the one claiming property by adverse possession to prove his claims by clear and convincing evidence, and every reasonable intendment will be made in favor of the true owner.

5. Mere user by the public of a road is insufficient of itself to establish a highway by prescription or long use. The user must be adverse and hostile to the rights of the owner, and where the use is by permission of the owner of the land it is not adverse and affords no basis for prescription.

Ottmar & Nething, Jamestown, for defendant and appellant.

Hjellum, Weiss, Nerison & Jukkala, Jamestown, for plaintiff and respondent.

TEIGEN, Chief Justice.

The defendant has appealed from an adverse judgment, and demands trial de novo.

The plaintiff is the owner of the West Half and the Northeast Quarter of Section 9, Township 139 North of Range 67 West. The defendant is the owner of the Southeast Quarter of said Section 9. A dispute arose between them as to the location of the boundary between their respective lands. The plaintiff engaged a surveyor, who surveyed the boundaries. According to the boundaries as established by the survey, the defendant was farming a part of the plaintiff's land. This was denied by the defendant, who claimed that the respective boundaries had been established by acquiescence and long usage by the coterminous owners over a period of 40 to 60 years, which boundaries had continuously been recognized as the boundaries between the respective lands since that time. The parties were unable to agree, and the plaintiff commenced this action to determine the adverse claims. The plaintiff also prays for an injunction to enjoin the defendant from trespassing beyond the survey line, and for damages for past trespass. The defendant answered, denying that the surveyed lines are the true boundary lines between the lands of the plaintiff and defendant, affirmatively alleging that existing boundary lines have been established and recognized as boundary lines for over 40 years by the plaintiff and his grantors, that the plaintiff is barred by the statute of limitations from claiming the land between the boundary line established by long acquiescence of the parties and their grantors and the lines established by the recent survey, and asking that the defendant be adjudged the sole owner of the property in dispute by virtue of adverse possession thereof for more than 20 years. The defendant also asked judgment for damages.

The defendant in his counterclaim also prayed that certain roadways which cross plaintiff's Northwest Quarter and lead to the defendant's land be established as public roads by prescription.

The action was tried to the court, and the court found in favor of the plaintiff. It held that there was a total failure of proof of adverse possession on the part of the defendant for a period of 20 years, and a total failure of proof that the road over the plaintiff's land had been in continuous use by the public for a period of 20 years or more. It quieted title in the plaintiff of his lands to the surveyed lines, awarded the plaintiff damages in the amount of $281.25, and restrained and enjoined the defendant from using any part of the plaintiff's land or the roadways located thereon.

We have prepared a plat of the area as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The defendant traces title to the Southeast Quarter of Section 9 back to his father who acquired it in 1902. The defendant is now 60 years of age, and testified he has farmed the land since his father died in 1949, and that he assisted his father in farming it before that time. He testified his father broke the Southeast Quarter of Section 9 in the year 1920, and that it has been cultivated and cropped continuously since that time. He testified that when the land was broke his father hauled rocks off from the said land and placed these rocks in a line at the west edge of the land; that since 1949 the defendant also had hauled rock and placed the same in this rock line; that the land had been farmed up to the rock line continuously since it was broken in 1920. He testified the rock line has been considered the west boundary of the Southeast Quarter of Section 9 ever since that time, being a period of 45 years before the commencement of this action.

It appears the topography of the land is rolling and hilly, and that there are some large sloughs in the area. The rock line extends southerly from the east-west quarter line a distance of about 600 yards, to the big slough on the south. According to the survey line as established by the surveyor, it appears this rock line varied from approximately 80 to 113 feet west of the survey line. It also appears that a road or trail has been in existence running north and south, west of the rock line, since the early days. This road or trail existed even prior to 1903. It ends before it reaches the south section line of Section 9, because there is a large slough that extends into Section 9 from the south. It has been used principally by the owner of the land and hunters.

The plaintiff traced title of his land back to 1943, when his father purchased the West Half and the Northeast Quarter of Section 9. The West Half of Section 9 is also rolling, hilly, and contains sloughs. It has been used principally for the production of wild hay. The defendant's land has been cultivated since 1920. Thus the land east of the rock line and roadway possessed by the defendant and his father had been cultivated for a period of 45 years when this action was commenced in 1965, whereas the land west of the rock line and road had been permitted to remain in its wild state.

The plaintiff's father, who was 72 years of age, tesified that he acquired the West Half and Northeast Quarter of Section 9 by purchase in 1943, and that in 1946 or 1947 he rented the hayland on the Southwest Quarter and a part of the Northwest Quarter to the defendant. These lands were continuously rented by the defendant until 1963. The rock line and the road immediately west of it were there when he purchased the land in 1943. He testified the defendant farmed and cultivated the land east of the rock line right up to the rock line during the full period that he owned the land. He testified that the roadway and the rock line are substantially the same now as they were at the time he purchased the land in 1943. It appears the rock line is not a straight line. According to his testimony, it varies from 80 to 109 feet distant from the survey line.

Another witness, 83 years of age, testified that he had been acquainted with the property since 1903. He testified he remembers the roadway on the west side of the Southeast Quarter of Section 9, and that its location the last time he saw it about ten years before the trial was about the same as he first remembers it in 1903. He also testified he had recollection of the rock line located east of the road. Another witness, age 71 years, who had lived in the area for a long time, testified he first remembered the rock line about 20 years ago, when he traveled the roadway or trail that ran immediately west of it, when he was assessor. Another elderly witness testified that he had been familiar with the rock line since 1921 or 1923, because he had hunted in the area. He described this rock line as follows:

Well, it's a strip of prairie that hasn't been disturbed I would say probably ten or fifteen feet wide--fifteen--and rocks are strewn along there pretty good shape here and there. Over the hills, at least; through the sloughs, of course--

He testified it was approximately 600 yards long, runs to the big slough in the southwest corner of the Southeast Quarter. He also testified in reference to the rock line as follows:

They were there the first time I saw it, or most of them were, there's been more added to it every now and then.

We find the evidence establishes that the west boundary of the Southeast Quarter was established in about 1920, when the defendant's father broke up the land and started to cultivate it. It was established by placing the rocks which were hauled from the land in a line just east of the road, running from the northwest corner in a southerly direction, and until it reached a large slough which extends northward from the south boundary of Section 9. The road, or trail, has existed immediately west of the rock line since the early 1900's, and the land east of this rock line has been cultivated as a part of the Southeast Quarter of Section 9 since 1920, and has continuously been in the possession of this defendant...