Kengel v. Stuart

JAMES, J.

This is an appeal presented on the judgment-roll and is taken by the plaintiffs from a judgment entered in favor of defendants, quieting title to a small parcel of land. It is contended that on the findings of fact made by the court' the judgment cannot be maintained. The findings are somewhat prolix, and in some portions thereof, particularly in paragraphs VIII, X, and XI, the land is misdescribed, the word “east” being used twice instead of “west.” As this misdescription is plainly ,an error, and as other portions of the findings correctly state the terms of description, it may be taken that there is no dispute in regard to that matter.

Abstracting the facts found by the court, the case may be briefly stated: In the year 1897, one Knutson was the owner of a rectangular plot of ground containing 5.10 acres. On April 24, 1897, Knutson deeded to one Tasker the “east 2 acres” of said land, and on August 8, 1904, Tasker, by same deed description, conveyed the said two acres to defendants here. It will be seen, then, that after the conveyance to Tasker there remained of the plot of ground in the ownership of Knutson the west 3.10 acres. However, in 1899, Knutson conveyed to one Gresenthwaite by deed the “west 3 acres” of the land then, owned by him, and in December, 1905, Gresenthwaite conveyed to plaintiffs, by same deed descrip

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tion, the said west three acres. Knutson retained title to an intervening strip between the east two acres and the west three acres, consisting of .10 of an acre. On the 26th of November, 1913, Knutson, by quitclaim deed, transferred all of his title in the entire tract of land to the plaintiffs, excepting in his deed the east two acres, which he had in 1897 transferred to Tasker. The result of this quitclaim conveyance was

prima facie

to give title to plaintiffs in the .10 of an acre of land constituting the narrow strip lying between the easterly and westerly portions of the plot. It is this narrow strip that is made the subject of this suit, as to which plaintiffs sue to quiet their title. Gresenthwaite, in 1903, erected a fence on the easterly boundary of the west three acres, which fence divided the three acres from the easterly portion of land and divided the- west three acres from the strip in controversy. At the time of and prior to the purchase by the defendants of the east two acres from Tasker, defendants were told by Gresenthwaite that the fence was correctly located and marked the boundary line between the two properties. Upon that representation the defendants relied and made their purchase from Tasker. Defendants paid the taxes levied and assessed on the east two acres and the plaintiffs on the west 3.10 acres. It would appear from the findings, however, that the plaintiffs did not claim the' ownership of the .10 of an acre composing the strip in dispute, until after they received the quitclaim deed from Knutson in November, 1913. This action was brought in May, 1914. As we gather from the findings upon which judgment was entered in favor of defendants, the trial judge concluded that by reason of the statements of Gresenthwaite to defendants that the fence which he had erected was located upon the correct line of division, the plaintiffs, Gresenthwaite’s successors in interest, were estopped from making any claim to the disputed strip. The findings also recite that prior to the building of the fence the boundary line was uncertain, this finding evidently being made for the purpose of determining in favor of defendants an additional issue as to an agreed boundary line, so as to bring the case within the ruling made in