Broadhead v. Hawley

712 P.2d 653, 109 Idaho 952, 1985 Ida. App. LEXIS 705
CourtIdaho Court of Appeals
DecidedAugust 16, 1985
DocketNo. 15452
StatusPublished
Cited by4 cases

This text of 712 P.2d 653 (Broadhead v. Hawley) is published on Counsel Stack Legal Research, covering Idaho Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broadhead v. Hawley, 712 P.2d 653, 109 Idaho 952, 1985 Ida. App. LEXIS 705 (Idaho Ct. App. 1985).

Opinion

TOWLES, Acting Judge.

Lynn and Judy Broadhead (Broadhead) brought this action seeking quiet title to a strip of land approximately 10 feet wide, running along the south boundary of their property and the north boundary of property belonging to Terry and Sheila Hawley (Hawley). Broadhead alleged in his complaint that he had acquired title to this 10-foot strip by adverse possession. Following a trial before the court, Judge George held that Broadhead had not met his burden of proving his right to the property under any of the doctrines that would [953]*953arguably apply, including adverse possession, agreed title, and title by acquiescence. We affirm.

Broadhead and Hawley own adjacent lots in Blackfoot, Idaho. By this lawsuit, Broadhead seeks to settle the boundary between those two properties, not according to their deed descriptions, but along a line which Broadhead asserts has been recognized as the boundary for some 20 years.

The two properties in question were both under the ownership of one Parkinson from 1951 to 1964. When Parkinson received his deeds, the parcel now belonging to Broad-head measured 100 feet by 400 feet, according to its deeded legal description. When Parkinson reconveyed the north parcel to Broadhead’s predecessor in 1964, Parkinson altered the legal description, taking off the southern ten feet and adding it to the parcel now belonging to Hawley. Therefore, the parcel which is now Broad-head’s became a 90 foot by 400 foot lot.

Broadhead purchased his lot and house in December 1977 from Alan and Evelyn Herbst. Broadhead contends, and Alan Herbst testified, that, at the time Broad-head purchased the property, Herbst pointed out to Broadhead what Herbst understood to be the south boundary. This boundary was represented by Herbst to be marked by an old, rundown picket fence, 30 to 40 feet in length, running along a row of old trees and bushes at the south end of the parcel. The southern boundary is 400 feet long. The deed from Herbst to Broad-head conveyed a piece of property 90 feet by 400 feet, but neither Herbst nor Broad-head measured the property or had it surveyed at the time Broadhead purchased the property. If Broadhead is granted title to the 10 feet at issue here, his parcel will measure 100 feet by 400 feet.

Chris Martin, who owned Broadhead’s parcel from 1964 to 1975 before selling it to Herbst, testified that, when he purchased the property, he measured and marked the property lines himself, without benefit of a survey, by using what he thought were survey stakes already on the property. Martin testified that he was never really sure where the north line was, but he assumed that the southern boundary was where stakes had been placed, along the line that roughly coincided with the row of trees. Martin installed the picket fence and proceeded to cultivate and maintain the grass within the 10-foot strip here in issue, to the point of the fence, throughout his 11 years’ residence there. Part of that 10-foot strip later served as a play area for the children of renters living in Broadhead’s house. The renters kept that area cleared out and planted a garden there.

In about 1966, one Peterson owned the then-vacant lot which now belongs to Hawley, and Peterson constructed a house on his property. In about 1967, when Peterson desired to sell his property, he had trouble finding a buyer, because his property'lacked a way of ingress and egress to and from the garage. Peterson himself had been sharing a driveway with Martin, which driveway took in at least part of the 10-foot strip here in question. Martin gave the purchaser a right to use the driveway, but he testified that he refused to grant an easement that would be binding on future owners of either property. The document reflecting such agreement was titled as an easement, but it constituted a personal agreement between the parties for common use of the driveway lying between their respective properties. Later owners of the Hawley property did use the driveway, without objection from Broadhead or Broadhead’s predecessors.

Hawley purchased his home south of Broadhead’s property in August 1980. At the time he viewed the lot and considered purchasing it, Hawley measured the front footage to see what property he would be buying. However, he had trouble making his own measurements comport with those which the property description purported to include. Specifically, his measurement did not come out with enough front footage, if he accepted Mr. Broadhead’s claim, which Broadhead had expressed to Hawley, that Broadhead owned the full driveway. Therefore, as a condition to purchasing the property, Hawley required the realtor to [954]*954provide a professional survey, which was done. The result of such survey showed that Hawley's property lines, measured according to the description in his deed, took in the 10 feet here in dispute on the north side of his property. If one followed the survey, then the Hawley property and those properties on either side of Hawley corresponded to their respective deeds. Having taken this precaution of assuring that his square footage corresponded to the property description in his deed, Hawley purchased the property. Later, he removed the old fence and constructed a new picket fence four feet inside the survey line, leaving this four-foot allowance to avoid interference with the children’s play area in Broadhead’s yard. Broadhead objected to the construction of the fence, and this lawsuit ensued.

The legal descriptions to the parties’ properties in question are written in metes and bounds. The parties stipulated that Broadhead and Hawley have each paid taxes on their lots as assessed by the county assessor’s office. The county assessor testified that Broadhead’s lot was assessed according to its deed description, which covered a lot 90 feet by 400 feet.

In analyzing the merits of Broad-head’s claims, we begin by noting that the property in question is within the legal description of Hawley’s deed and that Broadhead has never been conveyed written title to the 10-foot strip of property he now claims. I.C. § 5-206, in the following language, gives a presumption that ownership of property lies in the person establishing legal, or written, title to it:

“In every action for the recovery of real property, or the possession thereof, a person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by another person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five (5) years before the commencement of the action.” (Emphasis added.)

The requirements of adverse possession are in turn delineated in I.C. § 5-210 as follows:

“For the purpose of constituting an adverse possession, by a person claiming title not founded upon a written instrument, judgment or decree, land is deemed to have been possessed and occupied in the following cases only:
1. Where it has been protected by a substantial inclosure.
2. Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be considered established under the provisions of any section of this code unless it shall be shown that the land has been occupied and claimed for the period of five (5) years continuously, and the party or persons, their predecessors and grantors, have

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Cite This Page — Counsel Stack

Bluebook (online)
712 P.2d 653, 109 Idaho 952, 1985 Ida. App. LEXIS 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broadhead-v-hawley-idahoctapp-1985.