Deidrich v. Simmons

McCuuroch. J., (after stating the facts.) -Appellee, by his objection to the transfer of the case to the chancery court, challenged the jurisdiction of that court, and that is the first question we are confronted with here, though it is not pressed in argument by other side. Appellee does not raise the question here, notwithstanding his objection below to the jurisdiction of the court, because he is the beneficiary of the final decree below, and is content therewith; and appellants cannot complain at the exercise of jurisdiction because it was of their own .seeking. Cribbs v. Walker, 74 Ark. 104. The establishment of disputed boundaries has been, from an early period of English jurisprudence, held to be a proper subject for the exercise of equity jurisdiction. It has been uniformly held, however, that the mere fact that boundaries are in dispute is not of itself sufficient to authorize the interference of equity; and that courts of equity will not interpose to ascertain and settle boundaries unless, in addition to the confusion and dispute over the boundaries, some other peculiar equities are shown. 1 Story, Eq. Jur. § § 690-623; 3 Pom. Eq. Jur. § § 1348, 1385; Tiedeman, Eq. Jur. § 525. Those peculiar equities are to be found in the facts of this case. The testimony shows clearly that all the sales and conveyances of the two lots, numbered 1 and 4, though the plat on file in the recorder’s office is referred to in the descriptive part of the deeds, were made in fact with reference to the dimensions and boundaries set forth in the published maps showing lot 4 to be only 154 feet deep. The purchasers from Jas. M. Hudson took possession of their resepective lots so purchased accordingly to those dimensions, and established their boundaries accordingly, made valuable improvements thereon, and no one ever disputed or questioned the correctness of the established lines for thirteen years, until appellee became the owner of lot 4, and asserted a claim to the strip of land in controversy. These facts are sufficient to call for the aid of a court of equity, in the nature of a reformation of the title deeds, to decree that to be within the boundaries described which the parties thereto intended should be included therein. The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long continued acquiescence and occupation according to such line, and they will be bound thereby. Cox v. Daugherty, ante, p. 395; Jordan v. Deaton, 23 Ark. 708; 5 Cyc. pp. 930, 935; Pittsburg Iron Co. v. Lake Superior Iron Co., 118 Mich. 109; Jones v. Pashby, 67 Mich. 459; Burris v. Fitch, 76 Cal. 395; Atchison v. Pease, 96 Mo. 566; Bloomington v. Bloomington Cem. Assn., 126 Ill. 221; Clayton v. Feig, 179 Ill. 534; Edwards v. Smith, 71 Texas, 156. The testimony here unquestionably establishes .the fact that the first purchaser from Hudson of these lots, Reynolds, and Mrs. Kilpatrick tacitly agreed upon the division line, and not only they but each subsequent purchaser acquiesced therein. It is undisputed that Mrs. Kilpatrick, after having first established the north boundary line of her property, stood by and without objection saw Reynolds, the purchaser of the adjoining lot, erect a dwelling house and other valuable improvements on the strip of land now claimed by appellee to be a part of lot four. She and those claiming under her are now estopped from disputing the boundary thus settled and long acquiesced in. i In Burris v. Fitch, supra, the Supreme Court of California held that-the acquiescence by a landowner, manifested by silent assent or submission, with apparent consent, fpr a long period, in the location of a fence as the dividing line between his land and that of the adjoining proprietor, operates to estop him from questioning the correctness of the location. The court there said: “We think this (referring to the testimony) shows an acquiescence by plaintiff, for a period of at least sixteen years, in the location of that fence as the division line between the lots of the plaintiff and the defendant. There was a silent assent or submission, with apparent consent, as distinguished from avowed consent and from opposition or discontent.” The decree of the chancellor is reversed, with directions to enter a decree in accordance with the prayer of the complaint.