
    Bailey v. Hughes.
    The plaintiff and defendant were the owners of adjoining farms, between which there was a disputed boundary line. The plaintiff alleged, by his petition, that he was the owner in fee and in possession of his said farm, describing the same, and that the same was bounded on the north by a designated line, up to which he was in possession, and that the defendant claimed to own a parcel of said land lying immediately south thereof. The defendant demurred to the petition for want of sufficient facts to constitute a cause of action. Held, that under the facts stated, the action was well brought under section 557 of the code of civil procedure.
    Error to tbe District Court of Pike county.
    The action below was brought by tbe plaintiff against tbe defendant, to quiet his title to a small strip of land lying near tbe line dividing tbe farm of the plaintiff from that of the defendant. He alleged, by bis petition, that he was the owner in fee simple and in possession of said strip, and that the defendant set up an adverse ownership to the same. The tract of land comprising the two farms at an early date was owned in common by several persons, by whom it was amicably divided into two parts by a line commencing at a gum stump, “ running thence north eighty-nine degrees, west five hundred and seventy rods to two red oaks and a sugar tree standing on the east bank of the Scioto river.” The north division of said tract was denominated the “Vanmeter farm,” and the south division the “ Harness farm.” The Vanmeter farm was purchased by the defendant Hughes about 1860, and the Harness tract was purchased by the plaintiff in 1865. The plaintiff alleged, by his petition, that for the greater part of thirty years prior to his purchase of the Harness tract, an old division fence stood on said dividing line, up to which, on each side, said lands were cultivated by their respective occupants. He then, among other things, alleged that, ■“ until said Hughes purchased the said Vanmeter tract, there was no controversy whatever as to said fence being the true-division line between said two tracts. That in 1861, and shortly after the said Hughes purchased the said Vanmeter tract, he removed said division fence from where it had stood for so many years, and built a new fence along a line-which he claimed as the true division line between the two tracts. Said new line, upon which said fence was built, commenced at a point on the bank of the Scioto river between two or three rods below, or south of where said old fence had stood, and ran from there acz-oss the bottom land,, approaching the old line gradually until it struck and finally crossed the line where said old fence had stood. When the plaintiff made his said purchase and took possession of the said Harness tract, he found the said Hughes-in possession of said lands down to said new fence, and claiming that to be the true division line between the said two tracts.
    “Plaintiff thereupon commenced in this couz-t an action against the said defendant Hughes to recover possession of said lands lying between where the said Hughes had built said new line fence and the line where the said old division fence had stood. And such proceedings were had in such action that, upon the final trial thereof at the April term,. 1870, of this court, the said Hughes succeeded in establishing to the satisfaction of the court and jury that said new fence had been built along and upon a line which had been run, staked off, and agreed upon as the true division line between the said Vanmeter and Harness ti-acts, by and between the said Hughes and the owner-s at the time of the said Harness tract, and that said parties had, up to and until the plaintiff became the purchaser of the said Harness tz’act, held, occupied, cultivated up to, and acquiesced in and treated said new fence as the true division line between said two tracts, and that by reason thereof the plaintiff’ failed in his said action. He avez-s, that by virtue-of said adjudication, the line upon which said new fence-was built wrns established as the true division line between the said tracts now owned by him and Hughes, respectively,. and he has accordingly acquiesced in and treated that as the true line, and has continued ever since he became the owner of said tract to hold and cultivate up to said line. He was not aware when he became the purchaser of said Harness tract that said new line had been agreed upon between the áaid Hughes and those under whom the plaintiff holds, and believing that where the old fence stood was the division line between the two tracts, he commenced and prosecuted said action, but since said trial is willing and now here offers to abide by said new fence as the true dividing line, and occupy and hold up to the same.
    “ He avers, however, that the said Hughes refuses to be bound by said line, as agreed upon by him and the Harness heirs, but threatens to take possession and occupy lands below, and south of said line, where said new fence stood. He avers further, that a dispute has arisen between the plaintiff and defendant as to where said new fence stood, or rather where said agreed line was staked off. Defendant now claims and insists that the lino where said new fence stood, or rather where said new line was run, is about two rods, at certain points along the line, south of where said fence was in fact established, and is continually encroaching upon the lands of the plaintiff, and disturbing, and threatening to disturb, his peaceable and quiet possession thereof. He says that said line, upon which said new fence was built, -was run and staked out by one-• Percy, who is now deceased. That the fence built originally upon said line, so run out and staked off, lias been washed away by high waters until there is nothing but an imaginary line of division between the lands of the plaintiff and defendant. Plaintiff says he is in possession of the lands up to where said new fence stood, and not north of that. That the lands along said line, south of the turnpike road, are valuable for agricultural purposes. Plaintiff' avers that he has plowed the ground and planted corn on his side of said line and up to the same, and that the defendant, in the absence of the plaintiff', crosses said line and plows up a portion of the ground and the com so planted by tbe plaintiff. • In consequence of said acts of the defendant, and his threats to persist in the same, the plaintiff avers that he is disturbed in the possession of a portion of his said land, and in the quiet enjoyment thereof.”
    Prayer to be quieted in his title and possession, and for alternative relief. A demurrer to the petition was sustained by the district court, and the petition dismissed. This action of the district court is assigned for error.
    
      O. F. Moore, with whom was George F>. Cole, for plaintiff in error.
    
      W. A. Hutchins, for defendant in error.
   Boynton, J.

The order of the court sustaining the demurrer to the petition, and its judgment dismissing the action, were erroneous. It is very obvious that the plaintiff, among other things, sought to set out such facts as would lead a court of equity to take jurisdiction and adjust a disputed boundary line between the two farms. But assuming the facts stated to be insufficient to warrant the court in giving such relief, it still appears, we think, from a fair construction of the language of the petition, that the plaintiff is in possession of the parcel of land in dispute, alleging title thereto in himself, and that the defendant sets up and claims an adverse estate or interest therein.

The petition states, that ever since the plaintiff -became the owner of said Harness tract, he has continued to hold and cultivate up to the agreed new line, and that the new line commenced at a point on the Scioto river, between two and three rods below or south of where the old fence stood —the old fence, before its removal or destruction, standing on the old line — and ran from there across the bottom lauds, approaching the old line gradually, until it struck, and finally crossed, the line where tbe old fence stood. Taking the allegations as a whole, it sufficiently appears, that the plaintiff alleged title and possession in himself up ■to the point where he claimed the new line to be, and that the defendant asserted a claim to land south of that line, so in the plaintiff’s possession.

This, under section 557 of the civil code (67 Ohio L. 116), was sufficient to entitle the plaintiff to an inquiry into the facts alleged, if they were controverted, and if not, to a judgment quieting his title against the adverse claim of the defendant. It is not, however, surprising that the court below fell into an error in endeavoring to ascertain the ground upon which the plaintiff sought to recover. The petition is very inartificially drawn, undertaking, as it does, to state several grounds of recovery as one cause of action, and not only stating them confusedly, but intermingling matters of evidence with matters of fact. Such pleading is calculated to embarrass the court in determining the issue, and often leads to prolonged litigation, and unnecessary expense. Had the court, of its own motion, required the plaintiff to state separately his several causes of action, its order would have been perfectly proper, and the delay already undergone would probably have been avoided.

Judgment reversed and cause remanded.  