Quinn v. Windmiller

Belcher, C. C. The plaintiff and defendant own lands which adjoin on two sides, a mile on one side and a half mile on the other. In 1872 or 1873 the plaintiff’s grantor and the defendant constructed a fence to divide their lands. This fence remained where it was placed till May, 1883, when the defendant, claiming that it was on his land and not on the true lines between them, removed a portion and asked the plaintiff to remove the balance of it. This action was then commenced by the plaintiff, to quiet his title up to the lines of the fence as it stood before any of it was removed. The case was tried and judgment rendered in favor of the defendant, from which and from an order denying a new trial the appeal is taken.

In his complaint the plaintiff describes the land to which he claims title as commencing at the center of a certain section seven, and running thence north forty-three chains to a fence, as it stood in the fall of 1882; thence west along the fence eighty-three chains to a fence; thence south along the fence sixty-three chains; thence east eighty-three chains, and thence north twenty chains, to the place of beginning.

In making their proofs both parties showed title from the United States, and their lands were described by legal subdivisions. The plaintiff did not attempt to show that the fence to which he claimed on the north and west was built upon the lines of the quarter sections as surveyed, but he insists that the court cannot know judicially that it was not so built, and that at any rate the plaintiff has title by prescription to the surplus, and that the defendant must be held estopped from denying that the fence was built upon the true lines.

We think the court does know judicially that under the system adopted by the United States for surveying and marking out its public lands, a quarter section is intended to be just forty chains square, and that whenever a claim is made that a quarter section contains a greater area, affirmative proof must be produced that the lines were so run upon the ground as to include that greater area. Here, in the absence of such proof, the court was justified in saying that the north line of section seven was only forty, and not forty-three chains north of its center.

Upon the questions of prescription and estoppel, it is claimed for the appellant that the fences were built by the owners of the [463]lands in 1872 or 1873, upon agreed lines, and that the plaintiff’s grantor occupied to those lines for about ten years, claiming title, and he thereby acquired title by prescription; that the defendant acquiesced in the lines as fenced, for the same length of time, and thereby became estopped from denying that they were the true lines.