White v. Boydstun

• Decision Date: 24 May 1967
• Docket Number: No. 9811,9811
• Citation: 428 P.2d 747,91 Idaho 615
• Parties: Raymond L. WHITE and Mary B. White, husband and wife, Plaintiffs-Respondents, v. Neal BOYDSTUN and Pearl N. Boydstun, husband and wife, Defendants-Appellants. Neal BOYDSTUN and Pearl N. Boydstun, husband and wife, Plaintiffs-Appellants, v. Raymond L. WHITE and Mary B. White, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 747

428 P.2d 747

91 Idaho 615

Raymond L. WHITE and Mary B. White, husband and wife, Plaintiffs-Respondents, v. Neal BOYDSTUN and Pearl N. Boydstun, husband and wife, Defendants-Appellants.

Neal BOYDSTUN and Pearl N. Boydstun, husband and wife, Plaintiffs-Appellants, v. Raymond L. WHITE and Mary B. White, husband and wife, Defendants-Respondents.

No. 9811.

Supreme Court of Idaho.

May 24, 1967.

Rehearing Denied June 16, 1967.

Smith, Miller & Weston, Caldwell, for appellants.

Clemons, Skiles & Green, Boise, for respondents.

McQUADE, Justice.

This is an action to quiet title ¹ to a parcel of land slightly larger than one acre, located ² near McCall, Idaho. Respondents assert ownership through title and possession from the 1920's until 1954 by George and Constance Fleharty, their predecessors with respect to the claimed parcel, and by their own title and possession since 1954. Appellants claim title by a chain of conveyances originating from the land's original patent holder, Samuel D. Hayes. The property in controversy is in a neighborhood of summer houses and cottages, permanent homes, playgrounds and some vacant lands. ³ It is contiguous and lies southerly to a .98 acre parcel which concededly was conveyed by deed in 1930 to George Fleharty. In 1954 the combined tract (the .98 acre parcel plus the parcel in controversy) was conveyed by deed to respondents from Constance Fleharty, who had acquired her title upon her husband's death. The following plat sketch, adapted by this Court from a recent engineering survey, ⁴ illustrates the relative locations of these two parcels.

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

A is the parcel to which respondents now hold express, uncontested title; B is the parcel in controversy.

The trial court found that the Flehartys had erected in 1932 and maintained ⁵ until 1954 substantial unbroken fences on the northerly boundary of parcel A from the lake to the highway, along the county highway from the northwesterly corner of A to the southwesterly corner of parcel B, and on the southerly boundary of B from the highway to the lake, enclosing A and B as one tract, and had paid all the assessed taxes ⁶ on the combined tract (A and B) during that period. The court also found that respondents had maintained the fences in standing condition serving as an enclosure from 1954 until trial, and had paid the assessed taxes for 1954 and 1955. The court found, too, that between 1930 and June 11, 1954, the Flehartys (Constance alone after her husband's death) had been 'in possession' of parcel B 'holding and claiming possession of the same adversely' to all persons; and that from June 11, 1954, until the trial, respondents adversely held and claimed possession of B. Based on these findings, the court quieted title to parcel B in respondents. This appeal is from that judgment.

Appellants challenge the sufficiency of the evidence to support the trial court's findings.

Regarding respondents' occupation of parcel B, much testimony concerned the existence of a barbed wire fence enclosing the combined tract (A and B) on three sides, excepting only the easterly or lakeside. Robert Wilson, Valley County, Idaho, sheriff from 1927 to 1939 and tax assessor from 1947 to 1953 testified that shortly after 1915 a fence enclosing the combined tract had been first erected. As of 1947, Wilson said, the fence was 'standing in good shape' and would have 'kept cattle out * * * reasonably so.' Beatrice Warren Turner, whose family owned the land northerly adjoining parcel A, testified that a barbed wire fence had stood enclosing tract A and B from 1919 to date of trial; that in the early part of this period she and her brothers and sisters had often been snagged by the part of the fence on the southerly boundary of B; and that she had seen Constance Fleharty repairing the fence every spring until conveyance to the Whites. J. F. Martin, an attorney with a residence 150 feet north of parcel A, testified that in 1932 when he first saw tract A and B, it was all fenced, and that since 1941 he had seen the tract every year and had noticed that it was constantly enclosed by a fence. Perc Shelton, a real estate and insurance man whose McCall property adjoins the Harbert property to the south, testified that since at least 1942 and until the date of trial, tract A and B had been enclosed by one fence which to his knowledge had been repaired every summer by the Flehartys until conveyance to the Whites. The fence, Shelton said, had been in good repair and its wires tight. Susan Harbert, whose property is next to parcel B, southerly, testified that she had seen a fence along the southerly boundary of B every year since 1942. Dr. and Mrs. White both testified that in the spring of 1954 when they first saw tract A and B it was enclosed on three sides by a continuous fence.

Appellant, however, called several witnesses who testified that they had never prior to the 1960's seen a standing fence along parcel B's southerly boundary. Appellant himself testified that no fence had stood there since 1931. John Jasper, who since 1933 had lived across the road westerly from tract B, testified that there was no fence along B's southerly boundary; his wife and a daughter corroborated this. Clara Herrick, who had lived across the road westerly from parcel A since 1934, testified that she did not remember any fence along parcel B's southerly boundary. Lois Wilde, who had lived in the neighborhood since 1953, and Vernon Hoss, who had lived there since 1956, both testified that they had not seen a standing fence along B's southerly boundary.

Though the testimony be conflicting, the trial court's findings regarding the fences are grounded on substantial, competent evidence and may not be disturbed. Swanson v. State, 83 Idaho 126, 358 P.2d 387 (1961).

As further proof of respondents' predecessors' conspicuous occupation and use of the land in question, evidence was introduced showing that the combined tract (A and B) was known and referred to in its neighborhood as 'the Fleharty property.' J. F. Martin used this term during his testimony as did Beatrice Warren Turner, who added that the tract was so referred to 'in the neighborhood and everybody talked about it or recognized it as the Fleharty property.'

A 1935 decree ⁷ of the district court of Valley County, Idaho, foreclosing a mortgage held by Frank H. Parsons on land immediately to the south of parcel B refers to the southerly boundary of B as 'the South Boundary line of that property known as the Fleharty tract.' Parsons' deed to R. B. Halferty refers to the southerly boundary of parcel B as the 'South boundary line of that property known as the Fleharty tract,' and 'the South line of * * * the George Flehardy land.' Halferty's conveyance to appellant's father W. B. Boydstun, likewise refers to B's southerly boundary as 'the South boundry line of said George Flehardy tract' and the 'South line of * * * the George Flehardy land.' A decree of settlement of final account and distribution in the estate of W. B. Boydstun, devising in equal shares to appellant-husband and his brother and sister all his property and some land in the lot within which the combined tract (A and B) is located, describes the southerly boundary of parcel B as 'the southeast boundary of said Fleharty tract.' The instrument by which Neal Boydstun's brother and sister conveyed their interest to him also refers to parcel B's southerly boundary as the 'southeast boundary of said Fleharty tract.'

Also evidencing respondents' and their predecessors' possession, J. F. Martin testified that the Flehartys alone had used the combined tract (A and B) from 1932 to 1954, and after them only the Whites occupied it. Perc Shelton testified that only the Flehartys had been in possession of the tract until the Whites took occupancy and thereafter 'The only reople that have lived there has (sic) been the Whites.' Robert Wilson testified that the tract 'was known as the Fleharty property to me.' This community reputation evidence was competent. See Eagan v. Colwell, 86 Idaho 525, 388 P.2d 999 (1964); Case v. Ericson, 44 Idaho 686, 258 P. 536 (1927).

The evidence summarized in the three preceding paragraphs supports the trial court's finding that their predecessors and then respondents openly claimed and occupied parcel B since 1930, and the finding will not be disturbed. I.R.Civ.P. 52(a); Lindhartsen v. Myler, Idaho, 420 P.2d 259 (1966); Swanson v. State, supra. Appellants object to the trial judge's admission in evidence of an unauthenticated map to which he referred in a memorandum decision (although his findings and amended findings of fact, both filed later, do not mention the map) as partially supporting a determination that parcel B had been 'long considered as being part of the Fleharty tract'; this argument need not be considered, however, because other evidence, discussed in the preceding three paragraphs, adequately supports the court's pertinent findings. Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616 (1932); see Parks v. Parks, 91 Idaho 420, 422 P.2d 618 (1967); Townsend v. Cahoon Constr. Co., 80 Idaho 425, 332 P.2d 880 (1958); cf. I.R.Civ.P. 61.

Concerning texas assessed and levied on parcel B, the property area assessed to respondents' predecessors for tract A and B was decreased on Valley County tax records during 1947 from two acres to 1.18 acres. There is no showing, however, that respondents were notified by the county assessor prior to this change, and it should be noted that their tax payments were not decreased after the modification.

Regarding the years before 1956, appellants introduced no evidence that they nor any of their predecessors paid taxas on parcel B during that period. The tax records of Valley County show that George Fleharty annually, between 1931 and 1947, paid taxes for two acres. Fleharty owned only one tract in the pertinent area, and while parcel A...