Woodland v. Woodland

• Decision Date: 08 December 1966
• Docket Number: No. 8243,8243
• Citation: 147 N.W.2d 590
• Parties: Homer G. WOODLAND, Plaintiff and Appellant, v. Lawrence WOODLAND, Earle D. Hartung and Alfred A. Thompson, Defendants andRespondents.
• Court: North Dakota Supreme Court

Page 590

147 N.W.2d 590

Homer G. WOODLAND, Plaintiff and Appellant, v. Lawrence WOODLAND, Earle D. Hartung and Alfred A. Thompson,

Defendants andRespondents.

No. 8243.

Supreme Court of North Dakota.

Dec. 8, 1966.

Rehearing Denied Jan. 19, 1967.

Syllabus by the Court

1. In an action to quiet title a person appearing of record as having a possible claim to, or interest in, the land involved, who is incompetent but has a guardian who was appointed by the county court of the county where the land lies, is a necessary party to the action, and attempted service upon such person and his guardian as 'unknown persons' is insufficient to give the court jurisdiction. Section 32--17--06, N.D.C.C.

2. To render possession adverse, it must not only be actual, but also open, continuous, notorious, distinct, and hostile, and of such a character as to unmistakably indicate an assertion of claim of ownership by the occupant.

3. Possession of real property which is permissive in its inception can become adverse only where there is a disclaimer of the true owner's title, or there are acts of such unequivocal nature on the part of the possessor that notice of the hostile character of the possession is brought home to the owner.

4. Where a person claims title not founded upon a written instrument or a judgment or decree, evidence that from 25 to 65 acres was put into crop on a quarter section of land is not sufficient to establish adverse possession to the fee owner of record of the 13 1/2 acre tract located within the quarter section, in the absence of any showing that any of the crops were grown on the smaller tract. Section 28--01--10, N.D.C.C.

5. The burden is upon the plaintiff to establish adverse possession for the statutory period by clear and convincing evidence.

6. Proof of possession of low, marshy land best suited for hunting, bounded by a fence which has been permitted to fall into disrepair, and which land is used as a small part of a larger tract for grazing, is not of itself sufficient to establish that the land was held adversely to the record fee owner.

7. The evidence in this case is examined and found insufficient to establish that plaintiff paid taxes on a 13 1/2 acre tract of land claimed to have been held adversely to fee owner of record.

8. Whenever a question of jurisdiction of the court, in a matter brought before it, appears, the court has the power and the duty to make all investigations necessary to determine that question, and it is not bound by an agreement of the parties stipulated into the record.

9. An instrument entitled 'Judgment Order' signed by the district judge and the clerk of the district court, the wording of which is such that it expresses the final determination by the court and at once ends the case and contemplates no further judicial action, is construed as a judgment where a copy thereof is introduced in evidence in another action duly certified by the clerk of the district court as being on file and of record in his office.

10. A final judgment entered in an action to quiet title against the predecessor of the present owner is res judicata to the present owner.

11. A general guardian is authorized to appear for and represent his ward in all suits and legal proceedings unless a special guardian is appointed for that purpose. Section 30--14--06, N.D.C.C. Held: that where there was no special guardian appointed for the purpose of defending an action to quiet title to certain lands brought against the ward, also naming the general guardian as a defendant, that his appearance by an attorney without first obtaining consent from the county court does not void the judgment entered by the district court in the action to quiet title.

12. An owner of originally nonriparian land, which becomes riparian, owns only the accretions thereto which form within the original boundaries of the nonriparian land.

13. Where a defendant in an action to quiet title counterclaims to have title quieted in him, he assumes the burden of proving his allegations, and in effect becomes a party plaintiff.

14. In an action to quiet title to real property, the plaintiff must rely on the strength of his own title.

15. The evidence in this case is examined, and it is held: that the defendants have failed to establish that accretions formed to Lot 8.

16. A motion for a new trial based upon the grounds of newly discovered evidence which could not with reasonable diligence have been discovered and produced at the trial is addressed primarily to the sound judicial discretion of the trial court.

Higgins & Christensen, Bismarck, for plaintiff and appellant.

Floyd B. Sperry, Bismarck, for defendants and respondents.

Thompson & Lundberg, Bismarck, for defendant, Alfred A. Thompson.

TEIGEN, Chief Justice.

Plaintiff appealed from an adverse judgment, demanding trial de novo. He also appealed from an order denying a new trial.

This action was brought in the District Court of Emmons County, North Dakota, as an action to quiet title and for damages for trespass to the Southwest Quarter of Section 12, in Township 136 North of Range 79. The defendants answered in the form of a general denial, and counterclaimed asking that title be quieted in defendants Hartung and Thompson to Lots 6, 7, and 8, of said Section 12, including accretions thereto, and for damages for trespass. The plaintiff replied to the counterclaim, generally denying the allegations, and cross-claimed, asking that title be quieted in the plaintiff to said Lots 6, 7 and 8, of Section 12, except to a small tract of about 12 acres which he alleges is located within an area originally surveyed as a part of Lot 8. The cross-claim is premised on the ground that the plaintiff is also the owner of Sections 2 and 11, in Township 136 North of Range 79, and accretions thereto, which accretions now extend over the area which was formerly Lots 6, 7, and 8, except for the said 12 acres located in Lot 8, and prays that title be quieted in the plaintiff as to the accretions. The defendant Noel Woodland was dismissed from the action by agreement of the parties. Lawrence Woodland is a tenant of the defendants Hartung and Thompson. This action was tried to the court without a jury.

This dispute arises as a result of changes that occurred in the main channel of the Missouri River over a long period of time. In the trial of the case much evidence was adduced and many exhibits introduced. Many of the exhibits consisted of maps, photographs, and the original surveys made of the area in question. We have prepared a composite sketch from the various maps, surveys, and photographs which we believe fairly represents true locations of the fractional subdivisions of land and the channel of the river as it existed at different times and is helpful in understanding the facts in this case.

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

The main issue established by the complaint involves that parcel of land shown on our sketch, triangular in form, and designated ABC. It is a part of the southwest quadrant which plaintiff describes as the Southwest Quarter. The defendants claim the same parcel as a part of Lots 7 and 8, as originally surveyed. In addition, both parties claim that as a result of the process of erosion and accretion by the river they are the owners of additional lands as alluvium. We will consider these claims separately in this opinion.

We shall first deal with the plaintiff's claim under his complaint. He asks that title be quieted in him to the Southwest Quarter of Section 12. As originally surveyed, the area claimed by the plaintiff was described as Lots 10 and 11, a part of Lot 4, and that part of Lots 7 and 8 which extends south across the north line extended of the Southwest Quarter of Section 12, and marked on our sketch as triangle ABC. Because of the change that has taken place in the main channel of the Missouri River since the original survey, the river is no longer located within the geographical area claimed by the plaintiff. The plaintiff's claim to title to the Southwest Quarter of Section 12 is based on the theory of adverse possession, accretions to Lots 3 and 4 in Section 12, and a district court judgment entered in an action entitled Woodland v. Hurst docketed in Emmons County on March 3, 1960. This judgment purports to quiet title in this plaintiff to the Southwest Quarter of Section 12. No appeal was taken and it is final. Thus he now claims the defendants are estopped to assert any title thereto. The entire district court file in the case of Woodland v. Hurst was introduced in evidence and made a part of the file in this case. The judgment in that action quiets the title to the said Southwest Quarter of Section 12 in the plaintiff, Homer G. Woodland. We have examined this file and all the papers contained therein. We find the defendants named in this action, Hartung and Thompson, and their predecessor Patrick Joseph Cox or his guardian, were not named as defendants and were not made parties in Woodland v. Hurst. The record in the instant action discloses that Patrick Joseph Cox acquired title to Lots 6 and 7 of Section 12 by United States Patent dated July 28, 1926, and that he acquired title to Lot 8 of said Section 12 by United States Patent dated April 9, 1926. Both patents were filed for record in the office of the register of deeds on August 12, 1926. The evidence also establishes that he lived upon this property in buildings which he erected from about 1920 to about 1935; that he became incompetent, and a guardian was appointed in Emmons County. Lots 6, 7, and 8 were sold in guardianship proceedings, and guardian's deed issued and delivered October 1, 1958, to the defendant Hartung, who in turn conveyed an undivided one-fourth interest therein to the defendant Thompson by deed dated October 21, 1958. The guardian's deed to the defendant Hartung was placed of record in the office of the register of deeds of ...