Woodland v. Hodson
| Decision Date | 08 October 1915 |
| Citation | 28 Idaho 45,152 P. 205 |
| Parties | J. T. WOODLAND, Appellant, v. T. H. HODSON, Respondent |
| Court | Idaho Supreme Court |
SURVEYS-BOUNDARY LINES-ACQUIESCENCE-OCCUPANCY.
1. When a surveyor is called upon to locate government corners and lines, he is not employed as an arbiter of disputes between adjoining land owners, neither is it his province to correct mistakes in the original survey. It is his duty to locate the corners and lines as formerly established.
[As to evidence of lost corners, see note in 22 Am.St. 35.]
2. Held, that acquiescence, for a period of about two years, in a boundary line established by an erroneous survey does not make the line so established binding or conclusive upon owners of lands abutting thereon.
[As to adverse possession as arising from possession by mistake of one intending to claim only to true boundary, see note in Ann.Cas. 1912A, 450]
APPEAL from the District Court of the Sixth Judicial District in and for Bingham County. Hon. J. M. Stevens, Judge.
Suit to quiet title. Judgment for defendant. Reversed.
Judgment reversed and a new trial granted. Costs awarded to the appellant.
A. S Dickinson, for Appellant.
Where the division line between coterminous owners of land is in doubt or dispute, they may expressly agree to abide by a certain line as a boundary, and where the agreement is executed or acquiesced in, the boundary thus established becomes binding upon the parties and their successors in interest, notwithstanding it may vary from the true line of division. (Dierssen v. Nelson, 138 Cal. 394, 71 P 456; Bullard v. Kempff, 119 Cal. 9, 50 P. 780; Palmer v. Dosch, 148 Ind. 10, 47 N.E. 176; Washington Rock Co. v. Young, 29 Utah 108, 110 Am St. 666, and note, 80 P. 382.)
A line is not fixed or located by a verbal agreement, by simply making the agreement. Actual possession must be taken up to the line, or something be done to execute the agreement in the direction of physical identification, as the erection of monuments, building fences or the like. (Osteen v. Wynn, 131 Ga. 209, 127 Am. St. 212, and note, 62 S.E. 37; Brummell v. Harris, 162 Mo. 397, 63 S.W. 497.)
Hansbrough & Gagon, for Respondents.
Where two coterminous proprietors agree upon the establishment of a line between their lands, and the line is so fixed and established by such agreement and is acquiesced in at least for a time, as in this case, the parties, or either of them, are estopped to deny it, or claim some other line, even though the time so acquiesced in is shorter and a less period than would be a bar under the statute of limitations. (Cavanaugh v. Jackson, 91 Cal. 580, 27 P. 931; Blair v. Smith, 16 Mo. 273; Smith v. Hamilton, 20 Mich. 433, 438, 4 Am. Rep. 398; Idaho Land Co. v. Parsons, 3 Idaho 450, 31 P. 791; Hoar v. Hennessy, 29 Mont. 253, 74 P. 452.)
Such agreement is not within the statute of frauds, and it cannot afterward be controverted by the parties or their successors in interest. (White v. Spreckels, 75 Cal. 610, 17 P. 715; Helm v. Wilson, 76 Cal. 476, 485, 18 P. 604; Orr v. Hadley, 36 N.H. 575.)
This action was commenced on July 11, 1912. The purpose of it is to procure a decree of the court quieting title in the appellant to a strip of land alleged in the complaint to be a part of the northeast quarter of section 6, township 3, south of range 36 east of the Boise meridian and to procure an injunction restraining the respondent from entering said premises, harvesting or interfering with the crops upon said land or removing the same from the premises, and from doing any act that would interfere with appellant's possession thereof. The respondent is the owner of lot numbered 3 and the southeast quarter of the northwest quarter of said section 6, situated immediately west of and adjoining appellant's land, and he contends that the strip in controversy is a part of his land above described and prays that his title thereto be quieted.
The case was tried by the court with the aid of a jury, to which interrogatories were propounded and a special verdict rendered as follows:
The court entered a decree quieting respondent's title to the strip of land in question, from which and from an order denying a motion for a new trial this appeal is prosecuted.
It appears from the record in this case that about 25 years ago, when the land now owned by the appellant was owned by one Gray and that now owned by the respondent was owned by one Keeney, the dividing line now in controversy was then in dispute; that Gray and Keeney, together with some of their neighbors and a man named Mackay, made search for the survey stakes and found the one marking the quarter section corner between the lands of these owners; that Mackay "was a kind of surveyor" and had a surveyor's instrument, and, at the request of Gray and Keeney, established their dividing line, and that they thereafter built their division fence on the line so established.
It further appears that after appellant purchased the Gray tract and respondent became the owner of the Keeney tract a controversy arose between them as to the dividing line, and in 1909 a civil engineer named Young was employed to locate it; that he made a survey which proved to be unsatisfactory and that on July 7, 1910, one Christensen, the county surveyor, was employed by these litigants and their neighbors to establish certain lines including the one now in controversy. There is some conflict in the testimony as to whether or not it was agreed between appellant and respondent that Christensen's survey should be final and conclusive upon them as to the location of the line. It is contended upon the part of respondent that it was agreed the survey should be binding, and upon the part of the appellant that this agreement was conditional and that it was to be conclusive only in the event that other land owners in the neighborhood would move their fences to conform to it. It further appears that the fence built by Gray and Keeney has never been moved and that the strip of land in controversy is still within appellant's inclosure.
The record further discloses that the appellant became dissatisfied with the Christensen survey, and there is evidence that about a year after it was made a contention again arose between the parties as to the correct location of their boundary line. Christensen in 1913 again made a survey and located the line at a different place from that established by his survey in 1910. His testimony was that his subsequent survey was made more nearly in accord with the United States government manual of surveys than was his former one, and while his testimony is unsatisfactory, it does establish that he is far from certain his survey made in 1910 correctly established the government corner, nor does he appear to be entirely satisfied that either of them did so. With respect to his survey made in 1910, he testified:
This case was tried and decided upon the theory that the first survey made by Christensen and acquiesced in at the time and for a short time thereafter, whether it correctly established the government corner or not, is conclusive upon them. This theory is erroneous.
When a surveyor is called upon to locate government corners and lines he is not employed as an arbiter of disputes between adjoining land owners, neither is it his province to correct mistakes in the original survey. It is his duty to locate the corners and lines as formerly established. In Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066, it is said:
" See, also, Washington Rock Co. v. Young, 110 Am. St. 666, 681 (note III), and cases there cited.
The testimony of Christensen discloses that instead of following the government manual and re-establishing the government corner and line in his survey of 1910, he attempted to apportion the shortage of land in the section according to no particular rule of surveying or, at best, according to one of his own. It follows that the parties are not bound by this survey.
It is contended by respondent that since the parties acquiesced in the line established by Christensen in 1910, they are bound by it whether it is accurate...
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Paurley v. Harris
...two years and four days, does not make the line so established binding or conclusive upon owners of land abutting thereon. Woodland v. Hodson, 28 Idaho 45, 152 P. 205, cited with approval in Campbell v. Weisbrod, 73 Idaho 82, 245 P.2d While Campbell v. Weisbrod, supra, decided in 1952, and ......
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Campbell v. Weisbrod
...corner. This was contrary to the call of the deed and obviously located the corner farther north than the call permits. Woodland v. Hodson, 28 Idaho 45, 152 P. 205; Hagerman v. Thompson, 68 Wyo. 515, 235 P.2d 750. While a boundary line consisting of a stream will ordinarily shift with the a......
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