Meyer v. Weigman

45 Iowa 579

• Court: Supreme Court of Iowa
• Decided: April 17, 1877
• Status: Published

Opinions

Eothrock, J.

i. evidence: session: pos nne. I. Pending the hearing before the referee, and after the introduction of some evidence upon the part of plaintiff, the certified abstract of the entry of plaintiff’s land was introduced in evidence, whereupon the parties agreed that the plaintiff owned in fee simple the east half of the southwest quarter, and thirty feet wide along the south side of the west half of said quarter to the Dubuque road, of section 25, 94, 4, and that the defendant owned in fee simple the northwest quarter of section 36, 94, 4.

It is urged by appellant that under the pleadings and this agreement no evidence as to an adverse possession was admissible, and that the only issue between the parties was- as to the true line between the sections as established by the government survey. It seems to us that under the allegations of the petition, fairly construed, the plaintiff claimed to hold to the fence alleged by him to be the boundary line. Under no other construction can any force be given to the claim of adverse possession. He avers that this fence was kept up and maintained as and for the south line of section twenty-five. He does not allege that it was in fact upon the line established by the government survey. The allegation that he was the owner of certain sub-divisions of land was denied by the answer, and when it became necessary to prove his record title and he introduced the first item of evidence, the agreement as to title in both parties was made, not, as we assume, for the purpose of adjusting any right claimed, but only to obviate the necessity of formal proof of what neither party really disputed. We think, upon the whole record being considered, the agreement should have no greater effect than this. The parties before and after the agreement introduced evidence as to the location, continuance, and permanency of the partition fence claimed by plaintiff as his boundary, and evidence as to the possession of the plaintiff up to the fence. On the trial the plaintiff sought to prove that the fence was upon the true line between the sections, and in addition thereto that he was entitled to hold to the fence because of adverse possession, wherever the original line may have heen.

II. We think the evidence as to the possession by the plaintiff up to the fence claimed by him as the boundary between the parties, and the adverse character of such possession, fully sustains the report of the referee and the decree of the court below. The case as made comes squarely within the rule announced in Brown v. Bridges, 31 Iowa, 138.

Affirmed.