
    BINFORD v. ECCLES.
    No. 2346.
    Decided July 29, 1912.
    On Application for Rehearing September 4, 1912
    (126 Pac. 333).
    1. Boundakies — Acquiescence. Where the owners of adjoining lands occupy their respective premises up to a certain line which they mutually recognize as the boundary line for a long period of time, they and their grantors may not deny that the boundary thus recognized is the true one. (Page 457.)
    On Application fob Rehearing.
    2. Boundaries — Evidence—Sufficiency. Evidence in ejectment held to sustain findings in plaintiffs favor as to the existence of surplus land in a block and acquiescence in a boundary line. (Page 460.)
    Appeal from District Court, Second District; Hon. J. A. Howell, Judge.
    
      Action by Sarah E. Binford against David Eceles.
    Judgment for plaintiff. Defendant appeals.
    Afbteiced.
    
      Bicharás & Boyd for appellant.
    
      A. 0. Horn for respondent.
    
      
       Holmes v. Judge, 31 Utah, 269, 87 Pac. 1009; Rydalch v. Anderson, 37 Utah, 99, 107 Pac. 25; Young v. Hyland, 37 Utah, 229, 108 Pac. 1124.
    
   EKEOK, C. J.

This is an action in the nature of ejectment instituted to recover possession of a strip of ground less than two feet in width by 130 feet in length. Upon a trial to the court it made findings of fact which, in our judgment, clearly reflect the allegations of the complaint and the evidence adduced in support thereof, and for thait reason we shall not refer to the pleadings filed by respondent. The only defenses interposed by appellant consisted of a denial of respondent’s ownership and an affirmative statement that appellant owned the strip' of ground in question. The findings of fa.ct are as follows:

“(1) That the plaintiff now is, and for more than fifteen years last past has been, the owner of and' entitled! to the possession of and in the possession of the following described real estate, to wit, a part of lot 6, block 24, plat ‘A,’ Ogden City Survey, beginning at a point 55 feet east of the northwest corner of said lot 6, and running thence east 26% feet, thence south 130 feet, thence west 26% feet, thence north 130 feet to the place of beginning. (2) That the defendant owns the land adjoining the land owned by the plaintiff as shown by his title papers. (3) That there is a surplus of land in said lot and1 block over and above what is called for by the original plat of said land, and that the original boundary lines of said lot and block were not marked on the land by monuments other than by fence lines located by the ref-spective owners of the lands located in said lot and block. (4) The court further finds that said lot and block aforesaid contain a surplus of land over and above the amount called for in the official plat of Ogden City, and when the same was platted the corners and exterior limits thereof were not definitely marked1 upon the land so platted, and therefore the predecessors in interest of the plaintiff and defendant herein, as well as other owners of the land in said block, determined and located upon the land the boundary lines of said lot and block and' also the boundary lines of the land of the plaintiff and erected fences-, buildings, and other structures in conformity with such determination and location, which said determination and location has been acquiesced in and agreed to by this plaintiff and her predecessors in interest and also by the owners of the land adjoining her land on the east for oyer twenty years, and the same has never been disputed until about the year Í90S, when this defendant, having shortly prior thereto become the owner-pf this said land which adjoins plaintiff on the east, began a dispute as to the boundary line between himself and this plaintiff and against plaintiff’s express written protest removed the fences iand other objects theretofore placed as defining the boundary line of the lands of the plaintiff and the defendant and erected a building upon his own land, the west wall of which extended over the boundary line as theretofore recognized by the respective owners of the land on each side of said boundary line, and the court now finds that the wall of said building extends over -and across said' boundary line and upon the land heretofore recognized as being the land of the plaintiff to the extent of 1.8 feet on the north end of plaintiff’s land and at the south end to the extent of 1.3 feet.”

The court made conclusions of law and entered judgment awarding possession of the strip of ground described in the findings of fact to respondent, from which judgment appellant prosecutes this appeal.

The only errors assigned are that the evidence does not sustain findings 3 and 4; “that the conclusion of law is not responsive to either the pleadings, the findings of fact, nor the undisputed evidence;” and “that the findings, conclusions, and judgment axe not responsive to tbe issues” presented by tbe pleadings.

After carefully reading tbe evidence preserved in tbe original bill of exceptions, we are thoroughly convinced that tbe findings of fact are not only supported by tbe evidence, but that they clearly reflect tbe same. Tbe evidence is undisputed that the ground claimed! by both parties to this action at one time was owned by one and tbe same owner; that approximately twenty-five years before tbe appellant became tbe owner of the land now claimed by him tbe prior owner sold a parcel of ground off tbe east side of bis ground to one of appellant’s predecessors in title, and after having sold and conveyed the same the predecessor aforesaid desired an additional three-foot strip' along tbe west side of the parcel before purchased by him, which tbe owner sold and conveyed to him; that after such conveyances tbe purchaser of said strip erected a substantial fence along the west boundary line of said strip; that said fence from thence forward for approximately twenty-five years before appellant became tbe owner of tbe parcel of land purchased as aforesaid from tbe original owner was always recognized' and maintained as tbe boundary line between the; parcels of land, one of which is claimed by respondent and tbe other by appellant; that during the time aforesaid said fence at times required repairing and replacing, which was always done when necessary by tbe owners of tbe parcels of land lying on either side of tbe strip by each owner contributing bis proportion of tbe cost of repairs or maintenance. Tbe evidence also shows that, when respondent purchased tbe parcel of land described in tbe findings, she purchased a parcel described by metes and bounds, tbe same being twenty-six and one-half feet in width from a certain known point; that said twenty-six and' one-half feet did1 not extend to the fence in question within twenty inches or two feet; that respondent’s predecessor in title and grantor, however, claimed, and she informed respondent, that there was a surplus of ground in tbe block in which said parcel of land was situated1 and that said surplus would extend tbe parcel purchased by respondent to tbe feiice aforesaid. Respondent, therefore, during all of the time she owned said parcel up to the time of trial, the same as her predecessor in title had done, claimed the fence as marking the east boundary line of her parcel of land and as constituting the boundary line between her land and the parcel now claimed by appellant. This claim no one disputed until after appellant became the owner of his parcel in August, 1903, and apparently it was not disputed until the year 1906, when appellant started to erect a building on his parcel, and in doing so tore down the fence aforesaid and started! to excavate for the foundation of his building by encroaching to the extent found in the findings on what respondent claimed as her land. When appellant had torn down the fence and had commenced, or was about to commence, to excavate upon what respondent claimed to be her parcel, she at once notified him in writing to desist from encroaching upon her land, but he disregarded her notice and protest and erected his building and placed a ' part of all of the west wall thereof on respondent’s ground to the extent found in the findings of fact.

Appellant’s counsel do not dispute any of the foregoing facts, but they contend that when respondent purchased she purchased a parcel twenty-six and one-half feet commencing at a designated point; that by measuring from said point said twenty-six and on&half feet did not extend' the east line of her parcel of land to the fence aforesaid, but left a distance between said fence and said east line of about twenty inches or two feet; that the east boundary line where said twenty-six and one-half feet terminated was always known or easily ascertained, hence there never was any uncertainty with regard to where the east boundary line of respondent’s parcel was, and, this being so, the fence was not intended as, nor does it constitute, a practical location of a disputed or an unknown boundary line, and therefore the principle of law which controlled the cases of Holmes v. Judge, 31 Utah, 269, 87 Pac. 1009, Rydalch v. Anderson, 21 Utah, 99, 107 Pac. 25, and Young v. Hyland, 21 Utah, 229, 108 Pac. 1124, does not apply to this case. We cannot agree with this contention. There was a question in this case with respect to the quantity of surplus ground, and respondent’s east boundary line was therefore extended1 beyond the limits of the twenty-six and one-half feet to the fence. It is not material whether respondent obtained1 more or less than her proportion of the alleged surplus ground existing in the block. It is sufficient for the purposes of this decision that she laid claim to some of the surplus ground and that she and her neighbor who joined her on the east acquiesced in the boundary line as marked by the fence existing between the two parcels of land.

The evidence clearly is to the effect that appellant’s predecessors in title recognized the fence in question as constituting the west boundary line of the parcel of ground now claimed by him, regardless of where the twenty-six and one-half feet terminated. This fact brings this case squarely within the doctrine announced in the foregoing cases. In Holmes v. Judge, supra,, at page 281 of 31 Utah, at page 1014 of 87 Pac., we said:

“In. all eases where the boundary is open and visibly marked by monuments, fences, or buildings, and is knowingly acquiesced in for a long term of years, the law will imply an agreement fixing the boundary as located and will not permit the parties or their grantors to depart from such lines.”

Following the' foregoing case ixu Young v. Hyland, supra, Mr. Justice Straup, at page 234 of 37 Utah, at page 1126 of 108 Pac., said:

* “Where the owners of adjoining lands occupy their respective premises up to a certain line which they recognize and acquiesce in as the boundary line for a long period of time, they and their grantors may not deny that the boundary thus recognized is the true one.”

That the foregoing is a wholesome and salutary doctrine when properly applied and enforced, 'the case in hand clearly demonstrates. If appellant’s contention as made in this case should prevail, then, although respondent had placed permanent buildings up to the fence line, yet appellant could compel ber to remore them because they were placed beyond the limits of the twenty-six and one-half feet, which is the quantity of land called for in her deed, unless she could in some way or by some means establish an estoppel «¡gainst appellant or his grantors. Appellant would thus be permitted to unsettle boundaries which by the adjoining landowners had been recognized and lacquiesced in for approximately a quarter of a century. Any rule of law which would permit such a result would be pernicious, and in the long run would produce strife and litigation, and in the nature of things would often result in injustice if not oppression. As we have pointed out in the cases referred to-, the rule has certain limitations and exceptions, and each case must therefore to a large extent at least be controlled by its own facts and circumstances. The case at bar, in our judgment, however, falls squarely within the rule laid down- in the cases referred to, and the facts and! circumstances of this case only tend to emphasize the wholesomeness of the rule as laid down in the cases referred to.

We desire to add, in conclusion, that, in view that appellant interposed no defense save ownership', the trial court upon the undisputed evidence could db nothing save to enter judgment awarding respondent possession of the strip of ground in controversy. In view of the record in this case this court can do nothing save to affirm that judgment, although it may be thait under different issues a court of equity would have the power to require the respondent to receive compensation in the form of damages instead pf compelling appellant to tear down and remove the brick building, part of which rests upon the strip of ground awarded to her.

Under the issues and the evidence,' however, no other judgment than the one entered is permissible, and in view of that fact the same is hereby affirmed. Respondent to recover costs.

MeCARTY and STRAUP, JJ., concur.

ON APPLICATION POE, EEHEAEING.

FEIGN, C. J.

Counsel for appellant bave filed a petition for a rehearing in which they vigorously contend that we have erred in affirming the judgment. It is strenuously insisted that there is no substantial evidence in support of the finding that there was surplus ground1 in the block in which the lots in, question are located. This contention is answered by appellant’s own witnesses. The city engineer of Ogden, who was called as a witness on behalf of appellant, after stating that he was familiar with the block in which the lots in question are located and had made surveys in neighboring blocks, according to' appellant’s abstract of his testimony, further testified with respect to' surplus. He said: “I know that the excess (surplus ground) in that block is about seven feet.” Respondent's witnesses had placed it at about eleven feet. Another witness, who said he was a field man in the city engineer’s office, also- testified on,behalf of appellant. In referring to' the question of surplus ground he said: “Tes, I think there is a surplus, in most all of them city blocks.” This had reference to the blocks among which was the block in question. True, this witness also said that according to the descriptions contained in the deeds of the several lots in the block there did not seem to be any surplus ground. This, however, is far from saying that there, was no surplus ground in the block in question. After having gone carefully again over the evidence, we do not hesitate to say that, if a finding was ever justified, then the finding that there is surplus ground in the block in question is justified.

It is also contended that we erred in holding that the evidence justified a finding that there was a boundary line established between appellant’s and respondent’s lots by their predecessors in interest. Upon this question the evidence leaves no room for doubt, and we shall therefore not discuss it further.

It is also strenuously urged that we erred in making the statement that one of the predecessors in interest had at one .time purchased three additional feet of ground and had then located the boundary line fence with reference thereto and as it stood for the time stated in the original opinion. It is contended that the abstract of title introduced in evidence shows that the witness who testified to the purchase and sale of the three feet of ground aforesaid was mistaken. Assuming this to be true, the question still remains: In what way does this mistake, if it be one, affect the result? All the witnesses who knew about the location and maintenance of the fence testified that it was located and maintained at the precise point where the former witness said it was located after the sale and purchase of the alleged three additional feet. It is beyond dispute that the fence was erected and maintained as a boundary line and that this was done upon the theory that the land on one side thereof was owned by respondent’s predecessors and1 that upon the other by appellant’s predecessors. This, with the surplus ground, was sufficient reason for establishing a boundary line just as held in the original opinion, and brings this, case squarely within the principle laid down by this court in its former decisions.

In view of counsel’s strenuous insistence that this case ought to have been distinguished from the cases cited in the original opinion, we have felt constrained to add the foregoing. Counsel should remember that in case of difference between this court and counsel as to whether a case should or should not be distinguished' we, and not counsel, must assume the responsibility of determining that question.

After carefully considering counsel’s argument in support of their petition for iai rehearing, we are still satisfied with the former conclusion. The petition is therefore denied.

McCARTY and STBAUP, JJ., concur.  