Santee v. Uhlenhopp

Evans, J. The lands involved are situated in the northwest quarter of a certain Section 7. The following plat, prepared by the commissioner, will aid in an understanding of the case. [1133] 1. Appeal and error: proceedings to as certain boundaries. [1132] The dotted lines on the plat represent the present location of the fences. The other lines indicate the true government lines. From the plat, it will be seen that the plaintiff owns the northwest quarter of the northwest quarter of said section. It is a fractional quarter, and [1133] the deficiency is gathered into plaintiff’s tract. According to the true government lines, his tract contained 27.27 acres; whereas, according to the fence lines, he had 23.36 acres. Though the defendants first contended that the fence lines were the true government lines,, the parties in interest stipulated that the report and plat of the commissioner correctly set forth the true government lines. The controversy was thereby narrowed down to the question of whether there had been such an acquiescence in the alleged fence lines as to establish the same. The trial court found against the defendants in that respect, and established the lines in accordance with the true government-lines, as shown by the report of the commissioner. We are first confronted with the question of practice as to whether the appeal is before us for trial de novo or as an ordinary proceeding. It is the contention of the appellants that the case is before us for trial de novo, on the theory that it was tried in equity below. This is denied by the plaintiff. The record discloses that the case was begun by the plaintiff under Chapter 5, Title XXI, being Sections 4228 to 4239, inclusive. Ordinarily, such a proceeding is a special proceeding. This one is expressly declared to be such, by Section 4230. Ordinarily, also, such a proceeding is triable as an ordinary proceeding, though without a jury. By Section 4237, it is expressly provided that this proceeding is triable in such manner on appeal. If the case was actually tried below on the equity side of the court, the record before us does not so disclose. It must be held, therefore, that the case is not triable here de novo. This holding becomes quite conclusive of the appeal. The evidence was conflicting. The prepondérance of numbers was with the defendants; but the evidence of the plaintiff was not without the support of corroborating circumstances. The fence line contended for by the defendants was not straight, but was irregular. The [1134] fence originally had been built when the land on both sides was held by the same owner. There was evidence for the plaintiff that frequent changes had been made in the location of the fence, such as it was. We are clear, therefore, that it cannot be said that the finding of the court lacked substantial support in the evidence. The result is equitable. 2. Boundaries: acquiescence. There is another fact that appears incidentally which might have had controlling importance. Mrs. Orvis, the owner of the southwest quarter of the northwest quarter, is non compos, and has been such for 25 years. It is at least doubtful whether acquiescence could have been claimed . as against her. If it could not operate against her, it ought not to operate against her adjoining neighbor. There could be no acquiescence of the one which negatived the acquiescence of the other. Finding, as we do, that the judgment'of the court below has support in the evidence, we cannot enter upon a consideration of the relative weight of the conflicting testimony. The judgment below is, therefore, — Affirmed. Preston,. C. J., Ladd and Salinger, JJ., concur.