
    [No. 5985.
    Decided March 10, 1906.]
    E. L. Lindley, Respondent, v. K. A. Johnston, Appellant.
      
    
    Boundaries — Adjoining Landowners — Location oe Division Line by Mistake — Adverse Possession — Limitation or Actions. Where adjoining landowners, without actual survey, locate a division line and jointly build a fence thereon believing it to be the true line, and occupy, cultivate and exercise exclusive dominion over the land up to such place, acquiescing in such location for overy twenty years, it must be taken as the true boundary; and an action to recover to the true line on discovery of a mistake in the location is barred by the statute of limitations.
    Appeal from a judgment of the superior court for Columbia county, Miller, J., entered August 5, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action of ejectment.
    Affirmed.
    
      R. F. & R. M. Sturdevant, for appellant.
    
      Miller & Fonts, for respondent.
    
      
       Reported in 84 Pac. 822.
    
   Root, J.

— Appellant and respondent are the owners each of a quarter of a certain section of land in Columbia county. Appellant is a successor in interest to Joseph Crawford, who received a patent for the northwest quarter of said section, June 1, 1880; and respondent is the successor in interest of Levi Lindley, who made, final proof on the southwest quarter of said section, February 18, 1885, and received patent therefor under the date of April .12, 1887. In 1881, without a surveyor, said Levi Lindley and Joseph Crawford and one S. T. ILanan, who was the owner of the northeast quarter of the same section, established a line between the north and south halves of said section, and upon this line said Lindley and Crawford erected a division fence^ which for twenty-four years thereafter served as the boundary line between their farms. Each of these original owners and his successors in interest occupied, cultivated, and exercised exclusive dominion over the land on his side of said fence and up to the same, continuously from 1881 until shortly before the commencement of this suit, in 1905. Shortly before the last mentioned date, an actual survey was made, and it was found that the correct line according to the government survey showed the fence to be so incorrectly located as to leave a-portion of the northwest quarter to the south of said fence, and in the inclosure occupied by respondent. Thereupon appellant moved his fence over so as to include said parcel of land, and respondent instituted this action to recover possession thereof. Judgment in the lower court was given in favor of respondent, and from this an appeal is taken.

It is urged by appellant that the location of this line by the original owners of these two tracts of land was not for the purpose of definitely locating and agreeing upon a division line, but merely to establish approximately where- the line was, so that they might inclose their land by a fence. Respondent, however, urges that the circumstances were such that the statute of limitations commenced to run at that time, and that he now has title to the strip of land in dispute by reason of adverse possession. The facts in this case are very similar to those of Bowers v. Ledgerwood, 25 Wash. 14, 64 Pac. 936, and we think this case is controlled by the principles enunciated in that. In said case the court, among other things, said:

“It will be observed there is no controversy as to the continued, uninterrupted occupancy by the defendant of the tract in controversy for a period of more than ten years; and the facts certainly establish that the claim and dominion of defendant over the tract was exclusive and inconsistent with any other theory than the claim of ownership, and entitled the defendant _ to recover in this action, unless we admit the contention urged by counsel for respondent — that the unintentional inclosure or use of a strip of land owned by another and lying next to the boundary, the location of which is not clearly known, will not constitute adverse possession.”

The court then decided that such contention could not be upheld. Several times this court has quoted with approval from the case of Caufield v. Clark, 17 Ore. 473, 21 Pac. 443, 11 Am. St. 845, the following:

“If one by mistake inclose the land of another, and claim it as his own, his actual possession will work a disseizure, but if ignorant of the boundary line, he makes a mistake in laying his fence, malting no claim, however, to the lands up to the fence, but only to the true line as it may be subsequently ascertained, and it turns out that he has inclosed the lands of the adjoining proprietor, his possession of the land is not adverse.”

See, also, Wilcox v. Smith, 38 Wash. 585, 80 Pac. 803; Sultsdorf v. Humphrey, 36 Wash. 1, 77 Pac. 1071.

It is conceded by all the authorities that, where adjoining landowners locate a division line and agree that it shall be deemed the boundary line, this will bind them, notwithstanding the same may not as a matter of fact be the correct line — assuming, of course, that said agreement is fair, conscionable, and free from fraud. In this case the trial court found that the original owners -of these two tracts of land, in establishing the line as aforesaid, agreed that it should be their boundary line. Appellant maintains that the evidence does not justify the finding of an agreement of this kind. The following extracts from a stipulation of the parties will show what took place, to wit:

“4th. That the aforesaid Joseph Crawford, Levi Lindley, and S. T. Hanan, desired to fence their aforesaid lands, and finding the government corner or half-mile stake at the northwest corner of the aforesaid southwest quarter’, being also the southwest corner of the northwest quarter of said section twenty-two, and finding also the government half-mile stake or corner at the southeast comer of the northeast quarter, being also the northeast corner of the southeast quarter of said section twenty-two-, they put up a pole at the point where the said half-mile stakes were found at said corners, and also put up a pole at what they deemed was near the center of said section twenty-two, and moved said pole and measured until they located what they deemed was the center of said section twenty-two, and established what in their judgment and from their measurements was the line running east and west through the center of said section twenty-two and believing said line so- established to be the trae boundary line between the north half of said section twenty-two, and the south half thereof; and Levi Lindley, owner of the southwest quarter of said section twenty-two-, built one-half of the fence along the northern boundary of his land, established as aforesaid, and Joseph Crawford built the other half of said fence along such line, making a division fence between Crawford and Lindley along the whole of what the said Joseph Crawford, Levi Lindley and S. T. Hanan from their measurements deemed was- the boundary line between the northwest quarter of section twenty-two-, aforesaid, and the southwest quarter thereof.
“5th. Both Joseph Crawford and Levi Lindley believed said line was the true boundary line between the northwest quarter and the southwest quarter of said section twenty-two ; but such line was never surveyed by a surveyor until it was surveyed by Ira T'rescott, surveyor, mentioned in the complaint, and the said Trescott varied the line from the one made by the said Joseph Crawford, Levi Lindley and S. T. Hanan so that the land in dispute according to his survey would be a part of said northwest quarter.
“6th. That such division fence was completed on or before the year 1881, and the said Levi Lindley and said Joseph Crawford in said year 1881 broke out and plowed their said lands up to the fence built by them along what was deemed the north boundary line of said southwest quarter; and their successors have ever since farmed said land up to such fence, including plaintiff and defendant in this action, and each succeeding owner of the northwest quarter, aforesaid, has made valuable improvements upon said northwest quarter until the same is a very valuable farm, and each succeeding owner since Levi Lindley, has made valuable improvements upon the said southwest quarter of said section twenty-two until the same is a very valuable farm. . . .
“8th. The disputed strip of land mentioned in plaintiff’s complaint has been in the use of Lindley and his grantor since 1881 as aforesaid, and included within the fences which have enclosed said southwest quarter since 1881.”

In the case of Dyer v. Eldridge, 136 Ind. 654, 661, 36 N. E. 522, the supreme court of Indiana said:

“The law is that the location of a division boundary fence, acquiesced in and acted upon, and the premises improved up to the line by each, for twenty years, becomes binding as the true line. Richwine v. Presbyterian Church etc., 135 Ind. 80; Wingler v. Simpson, 93 Ind. 203, and cases there cited. It is, indeed, axiomatic that acts are stronger talismans of intentions and beliefs than are words, and to them are we to look in settling the question of title. Guided by the evidence in this case, as to the acts performed, and applying the law theretOj the court could not have rendered a different judgment.”

In the case of Fisher v. Bennehoff, 121 Ill. 426, 435, 13 N. E. 150, the supreme court of Illinois employed this language:

“There can be but little doubt, from the evidence, that Eisher and Mean, in 1845, had a division line run between their respective lands, and established monuments to witness it, and that all parties interested in the lands acquiesced in the same until some time in 1881, and recognized it as the true boundary line, and built and maintained fences, and cut timber, on the faith that it was such; . . . The adopttion of such a line may be implied from acts and declarations, and acquiescence therein; and after the lapse of thirty-five years of uninterrupted acquiescence in the line, under the circumstances, the parties and their privies should be estopped from asserting that it is not the true division line.”

In the case of Hoffman v. White, 90 Ala. 354, 1 South. 816, the supreme court of that state spoke as follows:

“It may now be conceded that the fence is not, and has never been, on the true line between the lots, but that, on the contrary, it was by mistake placed so as to inclose with lot 32 a strip seven feet in width off the west side of lot 23. Tet, if the erroneous line was agreed upon by the then proprietors, as we think the evidence shows, under the belief that it was the correct line, and the owners of lot 32 entered on, and took possession of lot 32, to such conventional line, and held under a claim of right, their possession is adverse in its character to the true owner, and, if continued for ten years, ripens into a perfect title against all the world. Alexander v. Wheeler, 69 Ala. 332. It is insisted, however, that the line between these lots was not established by agreement of the parties. We do not concur in this view of the evidence, but the position may be admitted, and the element of contract in the location of the fence be entirely eliminated. The fact would still remain, that the owner of lot 32 intended to put the fence on the true line, believed he had done so, and his successors for more than ten years held up to the fence; under a claim of ownership hostile and adverse in its character. We do not doubt but that such possession, though not justified by an understanding as to the location of the fence, and originating in a mistake as to the true line, would, if open, notorious, actual and continuous for the statutory period, vest absolute title in the holder.”

Under these and many other authorities to the same effect, we think it is well established that where two adjoining landowners locate a division line between their farms and jointly build a fence thereupon, believing it to be the correct line; when as a matter of fact it is not, and continue said fence as their boundary line continuously for twenty-four years; each continuously occupying, cultivating, and exercising exclusive control and dominion over the land up to said fence, that it must, in the absence of positive evidence to the contrary, be inferred that said line was located and accepted by them pursuant to an agreement that it should be considered and treated as the division line.

In the case of Suksdorf v. Humphrey, supra, at page 6, this court said:

“The land being surveyed, the owner must be presumed to know where his lines are2 and, if his rights are encroached upon, his right of action will accrue at once.”

The lands in question herein had been surveyed by the government prior to the time the division line was marked out and the fence built as hereinbefore stated. If a mistake was made in the location of said division line; the appellant, under the authorities just cited, would be presumed to have known the fact within a reasonable length of time; at least, it was within his power to have so done. Both parties having acquiesced in the line for twenty-four years, it would seem against public policy to say that the statute of limitations should not be available.

The judgment of the lower court is affirmed.

Mount, C. J., Dunbar, Crow, Pauley, and Fullerton, JJ., concur.  