Woll v. Costella, 6520

• Decision Date: 08 December 1938
• Docket Number: 6520
• Citation: 59 Idaho 569,85 P.2d 679
• Parties: MARY DANILLS WOLL, Respondent, v. MATT COSTELLA and FANNIE L. COSTELLA, Husband and Wife, Appellants
• Court: Idaho Supreme Court

85 P.2d 679

59 Idaho 569

MARY DANILLS WOLL, Respondent, v. MATT COSTELLA and FANNIE L. COSTELLA, Husband and Wife, Appellants

No. 6520

Supreme Court of Idaho

December 8, 1938

QUIETING TITLE-PLEADING-COMPLAINT, SUFFICIENCY OF-ADVERSE POSSESSION-EVIDENCE-BOUNDARIES.

1. In action to quiet title, allegation in complaint that plaintiff was sole owner of the land was not inconsistent with allegation of title by adverse possession and acquiescence in boundary, and hence defendant could not compel plaintiff to elect between alleged inconsistent theories.

2. In quiet title suit, complaint need not divulge the chain of title or reveal probative facts, but an allegation in ordinary and concise terms of the ultimate fact that plaintiff is the owner of the property is sufficient.

3. In quiet title suit, title by adverse possession may be proved under general allegation of ownership.

4. Where pleadings in quiet title action conceded that the parties and their predecessors had been owners in possession of adjoining half sections for many years, but plaintiff claimed up to an old fence on ground of adverse possession the questions of ownership and adverse possession were not eliminated so as to leave only the question of fixing the boundary, and to preclude submission of interrogatories concerning acquiescence in the fence line.

5. In quiet title action, evidence indicating that the parties' predecessors in interest had acquiesced for more than 30 years in old fence as constituting the true boundary between half sections held to authorize finding for plaintiff on ground of adverse possession up to the fence.

6. Where there is no express agreement concerning location of boundary, adjoining proprietors cannot question a line which they have recognized as correct for a period of not less than the period of adverse possession.

APPEAL from the District Court of the Fourth Judicial District, for Camas County. Hon. D. H. Sutphen, Judge.

Action to quiet title. Judgment for respondent. Affirmed.

Judgment affirmed. Costs to respondent.

Bissell & Bird and Frank Croner, for Appellants.

In an action to quiet title the burden of proof is on the plaintiff to show he is the lawful owner of the premises in question. (Harris-Woodbury Lbr. Co. v. Coffin, 179 F. 257, Af 187 F. 1005, 109 C. C. A. 663; Whittaker v. Van Hoose, 157 Ala. 286, 47 So. 741; Vaughan v Palmore, 176 Ala. 72, 57 So. 488; Rucker v. Tennessee Coal etc. Co., 176 Ala. 456, 58 So. 465; Heaton v. Grant Lodge, 55 Ind.App. 100, 103 N.E. 488.)

The court should have compelled plaintiff to elect, as between three incompatible theories of recovery.

"The term 'Adverse possession,' cannot with propriety be applied to the possession of the owner of the land, for his possession cannot be adverse to anyone but himself." (Crocker v. Dougherty, 139 Cal. 521, 73 P. 429 (p. 430).

"It is plain that a person cannot hold adversely to himself." (Peavey v. Moran, 256 Mass. 311, 152 N.E. 360.)

A mere acquiescence in the existence of a fence cannot be considered as establishing a true boundary line; nor can such acquiescence amount to an agreement that it was upon the true boundary line. (4 Cal. Jur. 56.)

"The mere construction and maintenance of an intervening fence is not sufficient upon which to base a title by agreement or acquiescence." (Ross v. Burkhard Inv. Co., 90 Cal.App. 201, 265 P. 982 at p. 984.)

A. F. James, for Respondent.

A person who claims title by adverse possession may bring suit to quiet title. (Sec. 9-401, I. C. A.; Johnson v. Hurst, 10 Idaho 308, at 325, 77 P. 784.)

Long acquiescence in the existence of a fence is sufficient to establish such fence as the true boundary line. (O'Malley v. Jones, 46 Idaho 137, 266 P. 797; Bayhouse v. Urquides, 17 Idaho 286, (4), 105 P. 1066; Kesler v. Ellis, 47 Idaho 740, 278 P. 366.)

The true boundary, and long acquiescence in a certain boundary, is sufficient to establish title by adverse possession, even though taxes were paid in accordance only with record title. (Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066; Kesler v. Ellis, supra; O'Malley v. Jones, supra; Price v. De Reyes, 161 Cal. 484, 489, 119 P. 893.)

Boundary line long recognized and acquiesced in is better evidence as to where the real line should be than any survey made after the original monuments have disappeared. (Tarpenning v. Cannon, 28 Kan. 665; Crandall v. Mary, 67 Ore. 18, 135 P. 188 (1); Carpenter v. Monks, 81 Mich. 103, 45 N.W. 477; Howatt v. Humboldt Milling Co., 61 Cal.App. 333, 214 P. 1009.)

BUDGE, J. Holden, C. J., Morgan, Ailshie, and Givens, JJ., concur.

OPINION

BUDGE, J.

The controversy herein arose over the ownership of a strip of land a mile long, 37 feet wide, containing approximately two acres of land, said strip being along, adjacent to, or in the neighborhood of, the section line as fixed by a government survey of 1871 between sections 17 and 18, Twp. 1, S.R. 14, E.B.M.

Respondent and appellants, respectively, own, and have owned for some years, and have paid all taxes levied and assessed against adjoining half sections of land, described on the tax rolls as the W 1/2 of section 17 and the E 1/2 of section 18, all in twp. 1, S.R. 14, E.B.M., the title of both parties to their lands springing from patents from the United States government to their respective predecessors in interest.

About 1893 or 94, J. E. Danills, predecessor in interest of respondent, constructed a fence, referred to as the "old line fence," running in a northerly and southerly direction upon, or in the vicinity of, the section line between section 17 and 18, which fence remained where originally located by Danills until 1936, at which time appellants put in a new string of fence posts approximately 37 feet east of the "old line fence" and removed the "old line fence."

This action was instituted by respondent, seeking to quiet title to the 37-foot strip, to enjoin appellants from threatened trespass, and for damages, alleging that respondent owns the land in controversy; that it has been held and used in actual, adverse, open, notorious, continuous, uninterrupted and peaceable possession by respondent and her predecessor in interest for more than 30 years last past; and that the "old line fence" for a period of more than 30 years has been considered and acquiesced in by the respective owners of the lands, as representing and being the true dividing line between said lands. The court made findings of fact and conclusions of law in favor of respondent upon all three propositions, but found pecuniary damages had not been established. From the judgment entered in conformity with the findings and conclusions this appeal was taken.

While appellants' brief contains 14 assignments of error it is stated therein that appellants will:

"particularly discuss the first, second, third, ninth and fourteenth; contenting ourselves with a discussion of the other assignments as incidental to those just designated."

Appellants by their first and second assignments urge that the court erred in refusing to grant their motion to compel respondent to elect upon which of the alleged incompatible and divergent theories of the case respondent predicated her right of recovery, and in refusing to grant appellants' motion for nonsuit, urging that the doctrines of acquirement by adverse possession and the fixing of boundaries by acquiescence are incompatible with the theory of ownership by legal title and mesne conveyance. Appellants' argument appears to be to the effect that respondent, having alleged she owns the land in controversy, cannot consistently allege and prove that she acquired it by adverse possession or acquiescence in a boundary line, which argument does not appear to be supported by logic or law or well founded in fact for several reasons.

Respondent's complaint alleged the ultimate fact that she was the owner of the land in controversy. However, there is no allegation in the complaint to the effect that respondent relies upon any conveyance or specifically upon fee-simple title. The complaint does contain the further allegations that plaintiff and her predecessor in interest have been for more than 30 years in actual, adverse, open, notorious, continuous, uninterrupted, and peaceable possession of the lands and have paid all taxes and assessments levied and assessed thereon to the date of the filing of the complaint, and, that for the same length of time the predecessors in interest of respondent and appellants, and respondent, have acquiesced in the "old line fence" as the true boundary line. It seems obvious that the allegation of the ultimate fact that one is the owner of property is not inconsistent with an allegation that the ownership was acquired by way of adverse possession or acquiescence in the boundary line, since the ultimate fact of ownership is that which must be proven.

In a suit to quiet title it is not necessary for the complaint to divulge the chain of title, or to reveal the probative facts an allegation in ordinary and concise terms of the ultimate fact that plaintiff is the owner of the property being sufficient, without setting forth the probative facts, establishing the ultimate fact. (Hammitt v. Virginia Min. Co., 32 Idaho 245, 181 P. 336; Ihly v. John Deere Plow Co., 35 Idaho 651, 208 P. 838; Mascall v. Murray, 76 Ore. 637, 149 P. 517.) Title may be shown in any manner authorized by law. (Mascall v. Murray, supra; Zumwalt v. Madden, 23 Ore. 185, 31 P. 400; Cooper v. Blair, 50 Ore. 394, 92 P. 1074; Savage v. Savage, 51 Ore. 167, 94 P. 182.) Under a general allegation of ownership proof may be made of the title by adverse possession. (Raymond v. Morrison, 9 Wash. 156, 37 P. 318; Metropolitan Bldg. Co. v. Fitzgerald, 122 Wash. 514, 210...