Irving Browne Isaac Grant Thompson.

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boundary was not fixed in the deed by monuments, courses and dis-
tances, and a boundary fixed by the agreement and acts of the par-
ties was held to be conclusive. Judge Napton, who delivered the
opinion of the court, used the following language: '' It is said that
this doctrine conflicts with the statute of frauds, but it has not
been so regarded in any of the numerous cases decided on this
point. Where the terms of the deed are ambiguous, there is clearly
no ground upon which the statute of frauds can be invoked ; but
even where a well-defined boundary is given in the deed, we have
seen that a different one may be established under circumstances
which will conclude the parties from contesting it This is only
analogous to numerous other doctrines, as well settled as the con-
struction of the statute itself. Is not a title itself held to pass by
estoppel ? Have not the courts refused to permit the contents of
a deed to be proved, when the grantee has destroyed it with a view
to re-invest the title ? Have not the owners of land transferred
their title by standing by and permitting adverse possession, and
the adverse proprietors to build and improve ? The statute was
made to prevent fraud, and the courts have not felt themselvea
called upon to adhere so closely to its letter as to facilitate and
encourage the very evil it was framed to prevent. The truth is the



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OCTOBER TERM, 1876. 235

Turner v. Baker.



statute does not apply to such eases. The doctrine of estoppel is
as old as the statute of frauds, and, as such, a part of the law of
the land. It is no objection to either, that the one may be a modi-
fication or regulation (?) of the other."

In the case of Blair v. Smithy supra, the rule laid down in
Taylor v. Zepp was followed and approved, and the following lan-
guage was employed in giving expression to the opinions of the
court : ** The statute of frauds does not touch such a case as this.
Here there is no sale of land to either party. There is no consider-
ation passing from one to the other; it is not a contract either of
buying or selling land from one to the other. They own adjacent
lot^ — contiguous lots ; they agree that such a marked line shall be
the dividing line between the lots which they own ; and they use
and occupy the respective lots up to this line, not for twenty years,
not for fifteen years, but for a lengtli of time sufficient to show the
understanding and the intention of themselves — to show that they
know their own boundary, that they are content with their own
boundary * * * ^^ Now, this use and occupancy with-
out disturbance, for a time, long enough for men to show that they
know the boundary between their lands, shall be considered bind-
ing and conclusive as to such boundaries, as well as of such under-
standing or agreement between them.

'* They shall not after a lapse of years, longer or shorter, as the
circumstances may tend to bhow their agreement or settlement or
the fixing of their common boundary, be permitted afterward to
dispute it. Such boundary thus agreed upon shall be considered
the true one ; and each one considered as the owner of the land
mentioned in his deed thus marked out to that boundary between
them." See y ahOy Boyd Y. Grayer, 4 Wheat. 513; Heirs of Houston
v. Mattheios, 1 Yerg. 118; Lewellen v. Overton, 9 Humph. 76, which
assert the same doctrine.

The reason of the rule thus established must, of course, confino
its operation to cases of disputed or uncertain boundary. In all
cases where the location of the true boundary is known to the pro-
prietors of conterminous estates, and they attempt for mutual con-
venience or other sufficient reason to transfer land from one to th6
other by a parol agreement, changing the location of such boundary,
the statute of frauds will inflexibly apply. Nichol v. LytUy 4 Yerg.
456 ; Gilchrist v. McOee, 9 id. 455 ; Yarborough v. Ahernathyy 1
Meigs, 413; Voshurgh v. Teatory 32 N. Y. 568.



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236 MISSOURI,



Turner v. Baker.



We do not hesitate to hold, therefore, that where a disputed or
uncertain boundary line has been conclusively settled by parol
agreement, ejectment may be maintained for all the land included
within the call of the deed, as located and determined by the
agreement and conduct of the parties fixing the boundary; and it
has been so held in the case of Spears y. Walker, 1 Head, 166; Tar-
rant v. Terry, 1 Bay, 239.

The question next to be considered is whether there was any
testimony from which the jury would have been authorized to find
or infer the existence of an agreement between Lucas and the Lin-
dells, establishing their common boundary at the line of the Fry
and Lindell fences. There can bo no question, we think, but that
the boundaries called for in the conveyances were of that nature
that they might properly be made the subject of voluntai-y adjust-
ment by the parties.

As stated in Taylor v. Zepp, supra, it has been held that they
may be so adjusted even when the boundary is defined in the deed
by courses aiid distances. Lucas and the Lindells were all dead
when this cause was tried, and no testimony was introduced to
show any express agreement between the parties as to their com-
mon boundary. But there can be no controversy about the fact
that the Lindells did in 1828 or 1829 erect a fence on what they
supposed to be their western line. Nor can there be any contro-
versy about the fact that Lucas, regarding this location made by
the Lindells to be correct, acquiesced in the same, and agreed to
the survey made by the Finneys in 1832-3, and the location of their
[>ermanent fence made in accordance therewith, fixing their eastern
and his western line. The further fact is not disputed, that the
area originally left between the Finney fence and the Lindells was
slightly in excess of the arpent, and that when the Lindells erected
their permanent fence in 1832-3, they located it a few feet west of
the fence first erected by them, thereby reducing the open space
between their fence and the Finney fence to one arpent in width,
the amount claimed by Lucas. It is not denied that Lucas, from
the date of his deed, in 1824, to the day of his death, in 1842, with
the knowledge of the Lindells, exercised acts of ownership over
this vacant space, and claimed it as his own. He protected it
against trespassers, pastured his cattle upon it, improved its sur-
face, and paid taxes upon it. And there was evidence to the effect



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OCTOBER TERM, 1876. 237



Turner v. Baker.



that one of the Lindells being upon the land, declared Lucas to be
the owner of it, and stated that he had tried to buy it, but could
not. Lucas kept this ground vacant as a " look-out " to the north,
and as a means of egress northward to the St Charles road from
his residence, which was immediately south of it It is not denied
that the Lindells, prior to their discovery, in 1845, that the line of
their western fence was not in fact the true line, constantly recog-
nized this arpent to be the property of Lucas, and did, on various
occasions, and to various persons, so declare themselves.

It is strenuously contended, however, on behalf of the defend-
ant, that, as the location of the Lindells* west line was made by
them in ignorance of their true boundary, tliey were not guilty of
any fraud, concealment, or willful misrepresentation, intended to
deceive Lucas, and by which lie was deceived and misled to his
injury, and that therefore they are not estopped from claiming to
their true line.

This is not a case involving the general doctrine of estoppel, so
ably and learnedly discussed by the distinguished counsel for the
defendant, and if it were we should be disposed to take issue with
his statement of the law on that subject The rigid rule, laid
down in Pickard v. SearSj 6 Ad. & El. 469; Boggs v. Merced
Mining Company y 14 Cal. 279, and kindred cases, has been some-
what qualified by more recent adjudications. But the question
here is, whether the testimony relating to the practical location of
the boundary lines between Lucas and the Lindells, in 1828 or
1829, and their acquiescence in the same for a period of nearly
seventeen years, together with the declarations and conduct of the
parties in reference thereto, was sufficient to warrant the jury in
inferring therefrom an agreement between the parties establishing
such line. We think it was.

In Rockwell v. Adams, 7 Cow. 761, Sutherland, J., said:
" Now I apprehend that it is not necessary, in order to make an
actual practical location control the courses and distances in a
deed, that the party making such location, or subsequently recog-
nizing it, should in all cases know that the effect of it would be
to give him less land than he would otherwise be entitled to,
nor that there should be an express agreement to abide by such
line. An acquiescence for a length of time is evidence of such
mgreement When the line has been acquiesced in for a great num-



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238 MISSOURI,



Turner v. Baker.



ber of years by all the parties interested it is conclusiye evidence of
an agreement to that line."

In Baldwin v. Brown, 16 N. Y. 363, supra^ it whasheld that such
acquiescence was couclusive evidence, not of an agreement but that
the boundary fixed was the true boundary. This, as we have before
seen, was upon the theory th^t no valid parol agreement could be
made in such cases — a doctrine which does not obtain in this
State.

In Dibble v. Rogers, 13 Wend. 539, referring to the charge of the
judge to the jury in the trial court, it was said : " He instructed
them that a long acquiescence in an erroneous location by the plain-
tiff would authorize them to find that the plaintiff had agreed to a
location different from that given by his deed; and whether he
knew his rights or not, such location or acquiescence would conclude
him ; and if the jury were satisfied that the plaintiff had agreed
to such a location (of which his long acquiescence in the location
contended for by the defendant was evidence) that they would find
for the defendants, otherwise for the plaintiff. This is the rule of
law laid down by this court in Rockwell y. Adams, 7 Cow. 762; and
again, after a second argument, in the same case, in 6 Wend. 467.
It is believed that the authorities referred to in those cases fully sus-
tain the principle. See iCaines, 363; 3 Johns. 8, 269; 7 id. 245, per
Van Ness, J.; 8 id. 367; 9 id. 100; 17 id. 29. It has again been
recognized in the recent case of McConnick v. Barnum, 10 Wend.
104; and in Ktp v. Norton, 12 id. 130. The acquiescence in those
cases varied from the period of 17 to 40 years. In this case it was
about twenty years. Those cases also show that the ac/«and deda^
rations of the parties are competent evidence upon the question of
location.

in Jackson v. McConnell, 19 Wend. 176, it was held that acquies-
cence was evidence of an agreement, but no conclusive evidence
unless continued for a great number of years. The rule announced
in the foregoing cases was approved in Blair v. Smith, supra, and
Taylor v, Zepp, supra.

It follows from the foregoing aurthorities, that the defendants*
instructions number 10, 11, 13, and 15, should not have been given.
Plaintiff's instruction number 2 needs some modification to mak€
it conform to the views expressed in this opinion.

[Omitting the question of adverse possession. J

It necessarily follows that the judgment of the Circuit Court,



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OCTOBER TERM, 1876. £39

Turner v. Baker.



both at General and Special Term, must be reversed and the cause
remanded for a new trial.

Judges Napton and Sherwood concur. Judges Nortok and
Henry were not on the bench when this case was argued.

Judgment reversed,

NoTB BT THE RxpORTER.— The law on the subject of practical location of division
lines seems to have been earlier and more carefully examined in the New York decis-
ions than in any other State. As the subject is one of great practical importance, we
have thought that a review of those decisions might be useful as an adjunct to the
learned treatment of the subject In the principal case. The subject is naturally divis-
ible Into the heads of Acquiescence and Agreement.

Acqolescence.—In the earliest case In New York ia Jackson v. Botoen, 1 Caines, 968,
A. D. 1803. It was decided that an adverse possession of more than twenty years was
■a bar to a recovery in ejectment. The court remarked that if a man was mistaken in
respect to his title, hut, under circumstances showing no suspicion of imposition or
ignorance, acquiesced in a possession by another in hostility to it, for the length of
time shown in this case, he ought to be concluded. That length of time in this case
was thirty-six years.

In Jackson v,Dtfliing^ 2 Caines, 196, A. D. 1804, the plaintiff's lessor and the defend-
■ant's predecessor had forty years before employed two surveyors tQ run a line between
them, and the defendant's predecessor by parol agreed to remove his fence to the line
which the surveyors found, but there was evidence of a subsequent parol agreement
between the plaintilTs lessor and the defendant, in effect rescinding that agreement.
This second agreement was, that if a suit between Klock, defendant's predecessor,
and Wills should l>e decided in favor of Rlock, the defendant was' to give up posses-
sion without suit; but If Wills prevailed, the plaintiff's lessor was to abandon his
claim. No evidence as to tlie event of that suit was given. Judge Spbncbr thought
the first parol agreement binding, but held it rescinded by the second ; that the plain-
tiff was bound to show the result of that suit ; but he held the acqulesence of forty
years to be conclusive In favor of the defendant. Judge LtviNGSroN held the first
agreement invalid, because It was not acted on, but agreed with Spencer as to the
acquiescence. Judge Thompson held the first agreement not affected by the statute ;
that the second agreement had nothing to do with the case as it stood, or that the
defendant should have chosen the result of the suit ; and that the plaintiff was enti-
tled to recover. Judgment of nonsuit.

In Jacksfm v. Vedder^ 8 Johns. 8, A. D. 1806, it was held that, where a partition had
been made, with a survey and a map, and possession had been taken accordingly and
held for forty years, the parties were concluded from contesting the correctness of the
actual location.

In Jacknon v. DUfendorf, 3 Johns. 269, A. D 1806, it was held, that, where a looatioD
had been made under a deed and survey, and undlsturloed possession held accordingly
for thirty-eight years. It should prevail, although subs quently made to appear inac-
curate.

In Jackson v. Ogdcn, 7 Johns. 238, A. D. 1810, the grant was uncertain and ambiguous
as to location, but there had been an acquiescence of seventeen or eighteen years, dur-
ing which the land had been cultivated and l>ecome valuable. The plaintiff also had
purch«&sed under defendant's title, taking a deed recognizing the lines thus located.
A majority of the court held this to be conclusive. But Judge Van Ness dissented,
holding that the grants conferred no title on the defendant, and that such a length of
possession was not sufficient to make title. He says, at page 246 : **The extent which
we have hitherto gone is, that when two persons already having a title haveeettled
the line of division between them, or when one having title has made an actual loca-
tion, according to what he supposed to be his true line, and his neighbors have aoqul-
1 in such location for a considerable length of time, the tioundary thus eetab*



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240 MISSOURI,



Turner v. Baker.



Ifshed Rhall remain nndlsturbed . But In this case my brethren go greatly beyond the
principle of our former decisions.*'

In Jackffon v. Zkmglasif, 8 Johns. 367, A. D. 1811, where there was no uncertainty as
to the true location of two adjoininiar lots of land, the single fact that one of the plain-
tilTs lessors, eight years before, had pointed out a mistaken line, which was fenced
accordingly, was not sufficient to conclude the plaintiff.

In JacH»m v. Gardner, 8 Johns. 894, A. D. 1811, It was held that, where A. voluntarily
surrendered a lease and took a new lease, and afterward claimed under the old lease,
he could recover no more land tlian what he could prove with absolute certainty was
covered by the old lease ; especially after the premises claimed had been in possession
of another for sixteen years, who had made valuable improvements.

In Stuyvesant v. Tompkins, 9 Johns. 61, A. D. 1812. there was a crooked fence between
the parties, which the plaintiff proposed to the defendant to straighten. Accord-
ingly the plaintiff employed a surveyor, who, to the knowledge of the defendant, and
without objection on his part, ran a straight line. The plaintiff removed the fence to
this line, and the defendant pulled It down. The plaintiff brought trespass. The
defendant showed that he and his ancestors had been possessed of the locus in quo tor
more than twenty-five years, and that duringall that time the crooked fence had been
the boundar>'. Also, that before the plaintiff's removal of the fence he objected to it.
The plaintiff was defeated.

In Jachmn v. Smithy 9 Joims. 100, A. D. 1812, it was held that where a survey was
made by the direction, and under the observation of the grantee, he cannot, after the
lapse of twenty-six years, vary the location. The grant in question was " for the use
of the gospel," but the court do not seem to lay any stress on the peculiar saoredness
of the purpose.

In Jachmn v. McCall, 10 Johns. 377, A. D. 1813, It was proved that the immediate
predecessor of the lessor of the plaintiff had repeatedly confessed that he was pres-
ent when the line was run by the king's surveyors, and that the line set up by the
defendant was the one he referred to. This line bad been recognized on both side:*
for forty-one years, llddy conclusive against the plaintiff.

In Jackmn v. Van Corlear^ 11 Johns. 127, A. D. 1814, the parties had made a new sur-
vey, and agreed on the line run thereon as the true boundary. Positive acts of acqui-
escence were shown, and after nineteen years the line thus established was held con-
clusive. But this was expressly placed on the ground of the agreement.

In Jachson v. Frecr^ 17 Johns. 29, A. D. 1819, the proprietors of the patent had parti-
tioned the same by actual survey, and the lot in question had been improved more
than twenty years, and the defendant had possessed It fourteen years. A verdict for
defendant was sustained. The decision was placed on the ground of the original
agreement.

In Rockwem v. Adamn^ 7 Cow. 761, A. D. 1827, action of replevin, tried in 1835, it does
not appear how long the acquiescence had been. The lands were wild, and no occu-
pation was shown except cutting of timber, and there had been no agreement as to
the line. But the court held that where the line has been acquiesced in for a great
nurat)er of years, by all the parties interested. It Is conclusive evidence of an agree-
ment to that line ; citing Jackmn v. Boicciu Jackson v. Vedder and Jackaimy. JXefen^
dorf. and adding, ** In each of these cases erroneous locations had been made, and
they had been acquiesced in (not with a full knowledge that they were erroneous, but
under a belief that they were correct;, for from thirty to forty years.'* The court also
hold that an actual practical location will control, although the party does not know
that Its effect will be to give him less land than he would otherwise be entitled to, and
that there need be do express agreement to abide by the line. And the court then
adopt and sanction Van Nebs* dissenting opinion In Jackaon v. Offden as the true rule.
The verdict for defendant was set aside The action was tried again In 18S8(6 Wend.
467, A. D. 1821), and eleven years' acquiescence was shown. The plaintiff had a verdict.
Chief Justice Savaor said the question was the same as In 7Cowen, adopted the law
there laid down, and denied a new trial. From this decision error was brought, and
the case came up again In 1836, before the Court of Brrora (16 Wend. 285), and this Is the
starting point back to which all subsequent decisions go. Chancellor Walworth laid



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OCTOBER TERM, 1876. 241



Turner v. Baker.



down this rule: "Where there can be uo real doubt as to how the premises should be
located, according to certain and known boundaries described In the deed to estab-
lish a practical location different therefrom, which shall deprive the party claiming
under the deed of his legal rights, there must be either a location which has been
acquiesced in for a sufficient length of time to bar a right of entry under the statute
of limitations in relation to real estate; or the erroneous line must have been agreed
upon between the parties claiming the land on both sides thereof; or the party whose
right is to t>e thus barred must have silently looked on and seen the other party doing
acts, or subjecting himself to expenses, ia *elatlon to the land on the opposite side of
the line, which would be an injury to him, and which he would not have done If the
line had not been so located, in which case, pcr/iaps, a grant might be presumed vHthin
the twenty years." Senator Maison in a long and elaborate opinion reviews all the
cases, and concludes that possession for less than twenty years had never been held a
bar, except In three cases, namely: Ogden^ Van Oniear and Oardiier. He lasrsdown
the rule '*that where the boundaries In the deed are clear and unambiguous and the
land thereby described can be easily, and without doubt or conjecture, ascertained, no
acquiescence or recognition, however unequivocal or often repeated, can have the
effect of depriving the party of his possession of land, unless that acquiescence be
continued in for at least twenty years." He continues: ^Wben lands have been
located, and such location acquiesc^ed in for any time less than twenty years, either
with or without agreement, and during the continuance of such acquiescence, with
the knowledge and assent of the party, but without objection, buildings are erected
and improvements made on the land thus possessed, the owner of the fee will , never-
theless, at law, be entitled to recover bis land, but the party bulldlngor improving is
not remediless; full and perfect relief and protection is afforded him In chancery,**
namely, by a perpetual injunction against the action at law. A new trial was granted
with but one dissenting voice.

Intermediate 6th Wendell and 16th Wendell, the case of McCormick v. Bamum^ 10
Wend. 1<H, was decided tu 1833. Here it was held that an owner of land was bound by
a division line, recognized by his surveyor as correct, where the owner has given
deeds in conformity to a map and field book made by the surveyor, and no efficient
attempt is made for twenty-two years to correct the line. Also, Kip v. Norlony 12
Wend. 137, In 1834, In which mere acquiescence for five years was held inconclusive.
Also, Dibble v. R*MJcr^ 13 Wend. 536, in 1885, in which the court held an acquiescence of
twenty years conclusive.

Clark v. TlVf/je//, 19 Wend. 320, A. D. 1838, decided that where, In a description In a
deed, course, distance and monument.are given, the premises must be located accord-
ing to the deed, and all parol evidence of the intent, acts and declarations of the par-
ties, going to establish a different location, is inadmissible as contradicting or varying
the deed, unless a possession be shown under claim of title for such a length of time
as will bar a recovery In an action of ejectment. If, however, doubt or uncertainty
exist, owing to the vagueness or obscurity of the description, or the decay or destruc-
tion of the monument, such evidence is admissible In aid of the deed. An actual
location by aorecmeiit different from the deed will be obligatory. Judge Cowen says
the defense of title b«r acquiescence for less than the 3tatutory period Is in the face of
the statute of frauds, and also contravenes the doctrine of parol evidence. It would
seem at first sight that Judge Cowen does not exactly know what to do with Adams
and littehwelU nor fully understand ou what ground the reversal was there put, but inas-
much as the Supreme Court xcere reversed, he himself has no compunctions about
*^ going back *' on the doctrine overruled . On a closer examination we do not see that
his doctrine differs from that of the court above.



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 27 → online text (page 30 of 115)