
    CLARA A. ROUSE v. MARTHA BOYE AND ANOTHER.
    
    January 16, 1925.
    No. 24,283.
    Evidence of adverse possession did not sustain finding as to boundary.
    1. Action to locate a disputed boundary. The finding that plaintiff had been in possession of the strip of land in controversy for more than 15 years is not sustained by the evidence.
    Judgment quieting title does not prevent assertion of practical location of boundary.,
    2. A judgment quieting title, to which an adjoining landowner is a party, does not preclude him from asserting that the boundary line between the two tracts has been established by a practical location thereof based on his adverse possession of the adjoining tract up to such line.
    Action in the district court for Martin county. The case was tried before Dean, J., who ordered judgment in favor of plaintiff. From an order denying their motion for a new trial, defendants appealed.
    Reversed.
    
      Paul C. Cooper, for appellants.
    
      Hayeraft & McCune, for respondent.
    
      
       Reported in 201 N. W. 919.
    
   Taylor, C.

This is an action to determine the location of a boundary line. The tracts of land involved lie in section 20 in township 101 of range 31 in Martin county, border on Tuttle Lake, and are described by metes and bounds. It is conceded that the southwest corner of section 20 is a known and established corner. The line in controversy begins 160 rods north and 95 rods east of this corner and runs north to Tuttle Lake a distance of something over 100 rods. Plaintiff’s land lies east of this line and defendants’ west of it. In 1886, defendants built a pasture fence along the line which they claim as the boundary. In 1896 they replaced this by a more permanent fence wbicb bas been maintained until tbe present time. According to tbe surveys upon which defendants rely, this fence is practically upon tbe boundary. According to the survey made in 1898, upon wbicb plaintiff relies, this fence is four to six rods east of tbe boundary. Tbe trial court found tbat tbe line claimed by plaintiff was tbe true boundary, and tbat plaintiff and her predecessors in interest bad been in tbe actual, open and adverse possession of tbe land in dispute for more than 15 years preceding tbe commencement of tbe action. Defendants appealed from an order denying a new trial.

Tbe finding tbat plaintiff bad been in adverse possession of tbe land in dispute cannot be sustained, for tbe undisputed evidence shows tbat defendants bad occupied and used tbe land west of tbe fence to some extent ever since tbe fence was built, and tbat plaintiff bas never occupied any part of it. Defendants claimed adverse possession; plaintiff did not.

In 1903 plaintiff brought an action against a large number of defendants, including tbe defendants in tbe present action, to quiet title to certain lands including tbe parcel of wbicb tbe disputed line is tbe western boundary. Tbe defendants in tbe present action interposed an answer in tbat action asserting title to a 5-acre tract, not involved in tbe present controversy, and disclaiming any interest in tbe remainder of the land claimed by plaintiff. Judgment was entered in August, 1903, quieting title in plaintiff to all tbe land except tbe 5-acre tract. Tbe present action was commenced in March, 1918, not quite 15 years after tbe rendition of tbat judgment, and plaintiff insists tbat tbat judgment interrupted defendants’ adverse possession of tbe land west of tbe fence, and bars them from claiming tbe benefit of their prior possession. Only tbe question of title was involved in tbat action. Tbe question of tbe location of tbe boundary lines of tbe several parcels was not involved, and was not presented or passed upon. Tbe judgment decreed tbat plaintiff was tbe owner of tbe parcel of land described therein, but did not determine tbe location of its boundaries on tbe ground; and tbe doctrine of res adjudicata, invoked by plaintiff, does not preclude the parties from litigating tbe question involved in the present action. Krause v. Nolte, 217 Ill. 298, 75 N. E. 362, 3 Ann. Cas. 1061, and note. The judgment can be given no different effect in locating the boundary lines than would be given to the patent from the government or the deed from plaintiff’s predecessor in title.

The evidence would sustain a finding that the line claimed by defendants had been established by “practical location.” Dunnell, Minn. Dig. § 1083. The surveys are conflicting. The trial court mistakenly supposed that the plaintiff, instead of the defendants, was the party who had been in actual occupancy of the disputed strip. We cannot assume that this location of the boundary would have been the same regardless of this mistake. There must be a new trial.

Order reversed.  