Cartwright v. Hamilton
Cartwright v. Hamilton
Opinion of the Court
The appellant Mary A. Cartwright owns the southwest quarter, and the respondents T. C. Hamilton and wife own the southeast quarter, of section thirty-two, in township twenty-three, north, of range forty-five, east of the Willamette Meridian. In March, 1919, the appellant, her husband joining with her as plaintiff, instituted an action in equity in the superior court of the county in which the lands lie, to establish the boundary line between the lands. In her complaint the appellant alleged that such boundary line had been marked by a fence for more than twenty years, up to and until some two years prior to the commencement of the action, when the same was unlawfully changed by the respondent T. C. Hamilton by erecting a new fence west of the original location at distances ranging from seventeen to thirty feet. She further alleged that the line of the old fence had been recognized and acquiesced in by respective owners as marking the boundary between the lands during the period of time mentioned, and that she and her predecessors in interest had been in the open, notorious and exclusive possession of such southwest quarter, and all of the land lying east of the same, if any, up to the fence, for more than twenty years, claiming’ the same adversely to all the world. That the respondent T. O. Hamilton had by his acts unlawfully ousted and ejected her from the land lying between the line of the old fence and the new fence erected by him, and had, since the erection of such fence, wrongfully and unlawfully withheld possession of the same from her. She further alleged that she and T. O. Hamilton, as adjoining proprietors of lands,' could not agree as to the location of the true boundary line between the lands, and prayed that a boundary line between the lands be erected, established and properly marked; that com
The answer of the respondents admitted the ownership of the lands as alleged in the complaint, admitted that the parties were adjoining proprietors and could not agree upon the boundary line between the lands, and denied the other allegations of the complaint. The prayer of the answer was that the true and legal boundary line between the lands be adjudged and decreed by the court, and that the expense thereof be equitably apportioned between the parties.
After issue had been thus joined, the trial court appointed a deputy county surveyor as a commissioner to survey and mark the true boundary between the lands. This officer performed the service and made report of his survey to the court, filing therewith a plat and the field notes of the survey. This report shows that the commissioner began his survey on the south side of the section, where he found a galvanized iron pipe set in the ground to mark the corner, and which he found by measurements to be substantially equidistant from the established corners marking the southeast and southwest corners of the section. From this point he ran a right line to the quarter section corner on the' north of the section, reporting that the newly erected fence substantially followed this line, and that the old fence, as nearly as he could ascertain its location, was, at the point of beginning, thirty-three feet east therefrom; at seven hundred and seventy-three feet, ‘ ‘ on ridge, ’ ’ was twenty-nine and six-tenths feet east, and at eleven hundred and thirty feet, at the point of the intersection of the line with the Palouse highway, was twenty-eight and nine-tenths
At the trial, following the report of the commissioner, it developed that the controversy between the parties was over the strip of land lying south of the Palouse highway and between the line of the old fence and the line as marked by the commissioner. There was no evidence seriously disputing the fact that the line as run by the commissioner marked the true dividing line; the appellant supporting her claim to the land by evidence tending to show that the old fence had been constructed as a line fence and that the line marked thereby had been acquiesced in, and that she had been in the adverse possession of the land lying west thereof for more than ten years, or' more than the period of the statute of limitations. The trial court found against her on these contentions, and entered a decree- to the effect that the true dividing line between the lands of the parties was the line as run by the commissioner, and that the appellant take nothing by her action in “virtue of her claim to any other boundary line running north and south between said properties upon the ground of adverse possession, use or acquiescence, or at all. ” It is from this judgment the present appeal is prosecuted.
The questions at issue as presented here are wholly questions of fact. On the question whether the old fence had been constructed as a line fence, the evidence, in our opinion, hardly leaves the matter in doubt. It appears that, at a time some thirty years or more prior to the trial of the cause, the county commissioners of the county in which the lands lie laid out a county road passing through the section of which the
Whether the respondents acquiesced in or treated any part of their fence as marking the dividing line between the premises for the period of the statute of limitations, the evidence is not so clear. It appears that the county road, as originally laid out, left to the southeast thereof in the appellant’s quarter section approximately three acres of land. The fences enclos
The remaining question, whether the appellant has title by adverse possession, is determined by the time she remained in the exclusive possession of the land. This possession began when she first enclosed the tract, and, since acquiescence of the adverse party is not a condition of the running of the statute of limitations, she is entitled to claim her possession as being adverse from that time down to the time the respondent actually set back the fence. But here again the evidence is conflicting, and we are not able to say that it preponderates against the conclusion of the trial court.
These conclusions require an affirmance of the decree of the trial court, and an affirmance is ordered.
Holcomb, C. J., Mount, Tolman, and Bridges, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.