
    Albert J. Kulas et al. v. James McHugh, Catherine and Mamie (Mary T.) McHugh, Appellants.
    Boundaries: maintenance of division fence: Implied agreement. Where a division fence between adjoining owners has stood for over ten years, each party claiming to own up to it, an agreement to make it the true boundary will be implied.
    
      Appeal froTn Dubuque District Court. — Hon. Need O’Dont nell, Judge.
    Thursday, May 23, 1901.
    This action in equity was begun by plaintiffs to enjoin a threatened trespass upon real estate. Defendants set up a claim of ownership of the tract in controversy, and by cross bill seek to quiet their title. Plaintiffs had a decree, and defendants appeal.
    
    Affirmed.
    Henderson, Hurd, Lenehan & Keisel for appellants.
    
      McCarthy & Kenline for appellee.
   Waterman, J.

Plaintiffs, who are husband and wife, own and occupy a lot, described in their deed as lot 6 in Hodgson’s subdivision, in Dubuque. They purchased of defendant Catherine McHugh, who, with her husband, James McHugh, occupied and made conveyance thereof, in August, 1883. At the time of this conveyance the north five feet of lot 5 in said subdivision, which is the ground in controversy, was inclosed by fence with lot 6, and the whole of the tract so included within the fences was taken possession of by plaintiff, and improved and held by them down to the time this action was brought. Mary T. McHugh, the daughter of Catherine and James McHugh, is now the owner of lot 5, and has been since the year 1888. Lot 5 was originally purchased by James McHugh in June, 1883, he taking a bond for a deed. In 1886 a dwelling was built thereon, which is now occupied by defendants. The conveyance under the bond was made at the instance of James McHugh to his daughter, she paying the purchase price. There is a claim of estoppel made by plaintiffs, based on the fact that Catherine McHugh represented lot 6 as including all the ground inclosed. But, as we rest our decision on another ground, we need not go into that matter. There was a division fence between these parties, which had stood for more than ten years prior to the controversy. Each party claimed to own up to this fence, and improved their respective lots accordingly. In Miller v. Mills County, 111 Iowa, 654, after a careful review of the prior decisions of this court, it was held that, where a division line between ad-joining owners has been acquiesced in by them for a period of 10 years, an agreement to make it the true boundary will be implied, and neither may be ordinarily heard to dispute it. See, also, Axmear v. Richards, 112 Iowa, 657. Hnder the holdings in these cases, plaintiffs’ title to the strip in question had vested, and the judgment of the district court was therefore correct-.- — Abbirmed.  