Browning v. Atkinson

Gould, Associate Justice. Appellant contends that course and distance are the controlling, and indeed, the only calls in the deed from Stevens to Boberts, and that to justify the adoption of a line varying from those calls, the evidence should show conclusively that the line adopted was not merely “reputed to be, but in fact was, the very line run and marked at the time ” the deed was made. But certainly it is competent for the owners of contiguous lands to settle the line of division between them; and if Stevens and Boberts, after the deed was made, and at a time when the land was theirs, fairly agreed upon and marked out their dividing line, though that line be subsequently, after long acquiescence, ascertained to vary somewhat from the course of the deed, it will be conclusive upon them and those claiming under them. In the case of George v. Thomas, 16 Tex., 88, Justice Wheeler, delivering the opinion of the court, and speaking of the necessity of following the lines actually marked, as far as practicable, says: “And the rule is the same, whether the deed or conveyance refer for its boundaries to the marked lines or monuments, or they be afterwards 609 marked or established by the parties.” (Waterman v., Johnson, 13 Pick., 267; Makepeace v. Bancroft, 12 Mass., 469; Davis v. Rainsford, 17 Mass., 212; Rockwell v. Adams, 6 Wend., 468; 7 Cowen, 761; Kellogg v. Smith, 7 Cush., 382; Lerned v. Morrill, 2 N. H., 198; Stone v. Clark, 1 Met., 378; 2 Wash. on Real Prop., 676, 2d ed; 1 Greenl. Ev., Redf. ed, sec. 301, note 2.) In regard to the character of evidence necessary in cases like the present, it has been said that “ acquiescence for a long time is evidence of an agreement to the lines.” (Rockwell v. Adams, 6 Wend., 468.) In that case, Chief Justice Savage gives the following extract from the opinion of Justice Van Ness, in Jackson v. Ogden, 7 Johns., 245, as stating the rule of law correctly: “When two persons, already hav-' ing a title, have settled the line of division between them, or where one having title has made an actual location, according to what he supposed to be his true line, and his neighbors have acquiesced in such location for a considerable length of time, the boundary thus established shall remain undisturbed.” In the case of Bolton v. Lann, 16 Tex., 113, Justice Wheeler says: “It may he observed, however, that the acquiescence of the proprietors of adjoining lands is not unfrequently referred to and received as evidence to determine their boundaries. Prior possession is notice of the claim of the person in possession, to the purchaser of adjoining lands, and the case ought to be one of very clear right to warrant such pm’chaser in disturbing the boundaries adopted by the former proprietors, as evidenced by their express or tacit consent.” Were it necessary, in order to dispose of the case to do so, we should hold that, under the evidence, the court might well have found that Boberts and Stevens had established the marked line as their division line; that this line had been acquiesced in for a series of years by those claiming under them, and that, notwithstanding the fact that this marked line, in a part of its length, varies, perhaps, as much as ten degrees from the course called for, the error is not such as can be ■ 610 corrected at this late day. But we are of the opinion that the plaintiff has failed to show title- to the land which he claims. The field-notes of the land given in-the deeds to Browning, from the heirs of Anna Daughtry, and the testimony of the surveyor who made the partition between those heirs, make it plain that the land actually divided and actually conveyed by them did not include the strip of land in controversy. Clearly, the plaintiff failed to show title to the contested strip of land, unless the plea of intervention of Browning’s vendors was sufficient to operate a conveyance of their rights. We know of no authority for giving such effect to that plea. Suits for land should be brought in the name of the party who has the legal or equitable title thereto, and the plaintiff in this case has failed to show title, either legal or equitable, to the land really in controversy. So far as the record shows, plaintiff’ is in possession of all the land to which her testator, Browning, acquired any right by the conveyances from the heirs of Anna Daughtry. This is a sufficient answer to his demand, without looking further. The judgment is accordingly affirmed. Affirmed.