
    J. C. Farley, Appellee, v. F. E. Neff, Appellant (and one other case).
    1 JUDGMENT: Conclusiveness — Life Tenant Not Party Defendant— Effect. The plea of a remainderman in fee that he is not bound by a judgment fixing the boundaries of the land, because the life tenant was not made a party defendant, will avail nothing, unless he shows at least that the life tenant is still living.
    2 JUDGMENT: Conclusiveness — Adjudication of Boundary Lines— Highways — County as Party. The eonclusiveness of a judgment fixing the boundary lines of lands separated by a public highway is not obviated by the failure to make the county a party defendant, when it appeared that the county did appear in the present action, pleaded to the merits, and was concluded thereby.
    3 QUIETING TITLE: Belief — Scope and Extent — Burdens and Benefits. A judgment, in an action to quiet title, that defendant should have the right to remove a hedge (valuable for the timber therein) from the land decreed to belong to plaintiff, but that defendant should completely remove the same, including brush 'and stumps, is not inequitable as to the latter requirement.
    
      Appeal from Clarke District Court. — H. K. Evans, Judge.
    Wednesday, December 13, 1916.
    Action to quiet title to a strip of land. The real controversy is over tbe location of the partition line between adjoining landowners. There was a decree for the plaintiff in each case, and the defendant has appealed.
    
    Affirmed.
    
      Temple & Temple and V. B. McGinnis, for appellant.
    
      O. M. Slaymaker, for appellees.
   Evans, C. J.

The controversy between the parties involves the boundary lines of lands in a certain Section 7. The contention for the plaintiffs is that their controversy was fully adjudicated in a prior adjudication. The defendant contends that he is not bound by the prior adjudication, and that the boundary line contended for by him has been established by acquiescence for 40 or 50 years. These suits were begun in 1913. Prior to that time, the controversy between the parties had run a course of several years, beginning in 1906. In 1907 a suit was brought by Matilda Sampson, one of the landowners, against all the landowners in the section, including the parties hereto or their grantors; and such suit went to final judgment. There is some confusion of names in the record pertaining to the prior history. Two .brothers Neff were parties to the former proceeding. Their names appear in this printed record as F. E. Neff, F. II. Neff, II. E. Neff and II. P. Neff. Four names to two persons are the equivalent of no name, and we have to perform the function of a proof reader, in order to get an intelligent comprehension of the record. Upon the record as a whole, we venture to guess that the correct names of the two brothers are F. E. Neff and IT. E. Neff, and that the name F. IT. Neff is mistakenly intended for F. E. Neff, and that of IT. P. Neff is mistakenly intended for IT. E. Neff. The following plat, appearing in the present record, will aid in an understanding of the discussion:

SECTION 7. ZS

The name F. H. Neff, appearing on such plat, should be corrected to F. E. Neff. The SE14 of the NE14 of such Sec. 7 was acquired by him from IT. E. Neff since the prior litigation. The land appearing on the plat as belonging to Backus is that now owned by J. C. Farley. On April 7, 1906, all the parties owning land in such Sec. 7 entered into the following written contract:

“Whereas there are some disputes as to 'the center line running north and south and each quarter line and north and south boundary line running east and west of Section 7, in Township 72 North Range 25 West of the 5th P. M. in Clarke County, Iowa. Now therefore we the undersigned being owners of land in said Section 7, do hereby agree to and with each other that we will employ a competent and disinterested surveyor (the surveyor-to be seleeted'and chosen by a majority of the parties to this agreement at a meeting for that purpose) to establish the said line and each party to pay their proportion according to the number of acres they own that is affected by said survey, and said parties do hereby further agree that they will abide by said survey and that it will be permanent and binding on all parties to this contract and that all partition fences affected thereby are to be placed on the established line as shown by said survey on or before November 1, 1906. Said parties to this contract to pay to the treasurer (to be selected at the same meeting called to select the surveyors) their proportionate part of said expenses as soon as said survey has been made. Who is to pay out said money only on the order of the secretary and countersigned by the president who are also to be selected at said meeting. ’ ’

Pursuant to such contract, the parties chose a surveyor, who made a survey and purported to establish the lines, and made his report accordingly. Some of the parties acquiesced and moved their fences; others refused. Thereupon, in April, 1907, Matilda Sampson brought an action in equity against all said parties, to establish, the boundary lines in accordance with the report of such surveyor, the same being known in this record as the Rariek survey. In a second count of her petition, she asked that, in the event that such Rariek survey could not be found binding upon the parties to the proceeding, the court proceed to establish the boundaries and corners of the lands in such section in accordance with the provisions of the statute in such cases. J. H. Farley and the two Neffs were parties defendant in such proceedings, and answered therein substantially to the same effect. Each of them pleaded the fact of long acquiescence in boundary lines as a settlement thereof. On December 12, 1908, the district court entered an order in such case, appointing Delay as a ‘ ‘ commissioner to make survey and establish the corners, as provided in Chapter 25, Title 21, of the Code.” The record also shows that this was done “by agreement.” Delay, as commissioner, made his report. Such report was duly objected to by J. IT. Farley and by the Neffs. Such objections were overruled, and the report was duly confirmed by the court, and judgment entered accordingly, in 1909. From such judgment, no appeal was ever taken. The lines thus established had the effect of both giving and taking land, as to some of the parties to the litigation. J. IT. Farley acquiesced in the adjudication by giving up land theretofore claimed by him, and he demanded from the defendant Neff possession of land awarded to him by the same adjudication. He brought this suit, therefore, in equity, to quiet his title to the strip involved, and decree was awarded him.

Referring for the moment to the J. H. Farley case alone, we think it clear that the adjudication referred to was conclusive upon the parties as to the controversy over the true location of the boundary lines. The only defect suggested in the proceedings is that one Elizabeth Neff was not a party, and that she was the owner of a life estate in the SEi/^ . of the NE14, her son IT. E. Neff being the owner of the remainder. This is the 40-acre tract subsequently acquired by F. E. Neff. Whether Mrs. Neff is still living or whether her life estate has been terminated by death, does not appear in the record. If her life estate has terminated, then F. E. Neff holds his title wholly under grant from his brother, H. E. Neff, and the irregularity as to Elizabeth Neff becomes entirely immaterial. We think the showing of interest in Elizabeth Neff is not sufficient to warrant a consideration of the alleged irregularity in the proceeding.

Referring now to the suit of plaintiff J. C. Farley, it is made to appear that his land and that of the defendant are separated by a highway, and that the adjustment of the line between them will involve a shifting of the highway. The contention of the defendant is that -the county is a party in interest, and and that it is not a party to this case, and was not a party to the prior adjudication; and that, for such reason alone, such plaintiff is not entitled to any relief. It is sufficient answer to this contention that it is made to appear by an amended abstract that the county did appear by counsel in the present case and did file a pleading herein, the purport of which was that the county was satisfied to take its highway upon the proper lines as the court should find the same to be, subject to certain conditions, which were fully provided for by the pleading of the plaintiff. We think this sufficiently meets the objection made by the appellant at this point.

One further complaint should be noted. A hedge row had been planted by the defendant Neff at or near the old line between him and J. IT. Farley. It was ordered by the decree below that he cut down such hedge, an(^ that he fully remove the same from Farley.fl land. The appellant complainS of the mandatory part of this decree. He claims the right to surrender the land in its actual condition, if he must surrender it at all. The plaintiff, appellee, concedes his right in this respect, and offers to take the land in its present condition, hedge and all.. This would seem to cure the grievance at this point. It appears that the old hedge contains considerable valuable timber, suitable for cutting into posts. The defendant having planted the hedge, the trial court was desirous of awarding to him its benefit, and awarded same to him upon the condition that it should be fully cleared; in other words, it required him to take burden with benefit, and, in effect, forbade him to remove the substantial part of the timber and yet leave the ground encumbered jvith brush and stumps, etc. There is nothing inherently inequitable in the order as made. Furthermore, the plaintiff offers to take the hedge in its entirety, relieving the defendant of all obligation with reference thereto. We see no ground of complaint for the appellant.

The decree of the court is therefore affirmed in each case. —Affirmed.

Ladd, Gaynor and Salinger, JJ., concur.  