Bader v. Zeise

Oole, J. This cause seems to have been fairly submitted to the jury under proper instructions. There was certainly evidence which tended to show that the defendant had claimed and occupied the strip of land in controversy adversely, for more than twenty years prior to the commencement of the suit. If the jury found that such was the character of the defendant’s possession for that period, the action would be barred. As applicable to the evidence bearing upon that question, the jury "were told that, while it was true as a proposition of law, that the defendant, by accepting a deed from Paul Pox, in which the twenty-six and twelve one-hundredth acres previously convej^ed to Anton Deitzler [were excepted], must, if he entered into possession of any part of the Deitzler tract, be deemed to have entered in subserviency to the title of Deitzler, and to hold in subordination thereto, still this legal presump [102] tion might be removed by the defendant’s showing the contrary by some clear and unequivocal act or title in himself. And the learned circuit judge added, that if the jury found the fact to be that Zeise and Deitzler had the twenty-six and twelve one-hundredth acre tract, deeded by Eox to Deitzler, surveyed offj and that they did thereby agree upon and establish the line so surveyed as the dividing line between them, and that each party, viz., Eox and Deitzler, and their grantees, have occupied and claimed the land on each side of that line accordingly, and that such occupancy and claim had continued for twenty years or more before the commencement of this suit, neither party holding on one side of the line could Maintain an action of ejectment against' the party holding on the other side of the line, for any land actually occupied by the other. The proposition would seem incontestible, that if two coterminous proprietors agree upon and establish a dividing line between their premises, and actually claim and occupy the land on each side of that line continuously for twenty years, such possession will be adverse, and confer a title by prescription. • There are a number of cases cited on the brief of defendant’s counsel to this point, and they might be largely increased. See Angelí on Limitations, § 384; Burell v. Burrell, 11 Mass., 293; Brown v. Cockerell, 33 Ala., 38; Brown v. McKinney, 9 Watts, 565. “ The authorities do not all agree as to the effect of a parol agreement for the establishment of a dividing line, followed by possession up to that line, for a period less than is necessary to perfect a bar under the statute of limitations.” Brown v. Cockerell, supra. But that question is not here. For there had been, or the evidence tended to show that there had been, a practical location and possession up to the line established, for the time mentioned in the statute to bar the action. It is said that the possession must be hostile or adverse in its inception, and must be continued with an intention to claim title exclusive of any other right. This, undoubtedly, is cor [103] rect. In tbis case it was insisted that the defendant never claimed any part of the twenty-six and twelve one-hundredth acre tract, but claimed only the land conveyed to him by Eox. Upon that question the court, in effect, charged the jury that they were to consider all the statements of the defendant which had been testified to, as to the extent of his claim, and, if the defendant really intended to claim up to the old line in the center of the road, believing that his deed from Eox gave him the land up to that line, there could be no recovery. The testimony tended to prove that there was a road along and over the strip of land in controversy, and that fences had been built on each side of the road, but that the center of the road had been treated as the true line between their respective lots. The charge wras intended to apply to this testimony. If the center of this road was agreed upon and established as the true boundary, the parties having claimed and occupied up to the fence on each side for twenty years, they would now, upon well settled principles, be precluded from insisting on a different boundary. The charge of the court laid down substantially this doctrine, and seems to be conformable to the authorities upon the subject. Several instructions were asked on the part of the plaintiff, which were refused. So far as these instructions were correct, and had any application to ■ the evidence, they were given in the general charge. We can see no error in the record which should reverse the judgment, and it must therefore be affirmed. By the Oomt.— Judgment affirmed. EyaN, O. J., and LyoN, J., took no part.