Cavanaugh v. Jackson

Paterson, J. The record shows that in December, 1880, and long prior thereto, the plaintiff was in possession of the Coats place, which he now owns, and the defendant, Jackson, was in possession of an adjoining ranch, known as the Beaughan place. A dispute having arisen as to the boundary line between the two ranches, a surveyor was employed by plaintiff and defendant to make a survey and establish the true line. Such survey was made in December, 1880. The plaintiff testified as follows: “ Jackson had this land fenced up for a long time prior to the first day of September, 1886, — maybe four or five years before that date, — along with other lands of his. .... Jackson and I established a line of fence between the Coats place, which I now own, and the Beaughan place, now owned by Jackson; we had the land surveyed from the center of section 28, west to the road. We established the line on the quarter-section line, and when we established the line, Jackson moved his fence out to the road, and inclosed this strip in controversy; that strip is narrower at the west end than at the east end. I bought the Coats place from Mr. Orr, but the deed did not include this strip, and Mr. Warren discovered that I had no deed, and that I must have a deed. I have exercised no acts of ownership over this strip of land. .... I had A. M. Jones survey this tract in about 1872. That strip is one hundred yards wider at the east end than at the west end. Dan Sullivan assisted Davidson in making the last survey.....Jackson and I put up our fences on the line as determined by Mr. Davidson. I did not object to Mr, Jackson putting up fence on line [582]from center of section 28, west to the road, and inclosing this tract in dispute; he fenced it right after the survey made by Mr. Davidson. That line never was inclosed, except a small portion thereof inclosed by appellant, until Mr. Jackson fenced it after the Davidson survey. We built the fences on the lines agreed on. We ran one line west from center of section 28 to the road, and on this line Mr. Jackson was to build his fence, and I was to build as much on the north and south line as he was to build on the east and west line; we were to, and did, build equal portions of said fence. Jackson moved out his fence, and inclosed this strip of land. .... I never asked Mr. Jackson for the land, nor to he let into possession of it.”

The defendant testified that be had occupied and used the land exclusively since 1880, and paid taxes on it ever since 1878, when he paid his proportion for the Whit-mire patent for the northwest quarter of section 28; that he took all the wood he needed off the land in controversy since the establishment of the boundary line, and had prohibited others from cutting wood there for eight or ten years past. The assessment rolls offered in evidence showed that the land in controversy had been assessed to defendant every year from 1878 to 1887, and that defendant had regularly paid said taxes. The defendant testified that in 1872 a survey was made by oue Jones on behalf of Mr. Wholey, Mr. Cavanaugh, and himself, the object being to determine how much Mr. Wholey and defendant were each to pay for the patent for the land granted by the state to Whitmire.