Small v. Robbins , 33 Nev. 288 ( 1910 )

By the Court,

Sweeney, J.:

This action was instituted on the 10th day of December, 1907, by the above-named appellants against the respondent to recover possession of a portion of lot 48 in the river front, in the city of Reno, as shown by the original official plat and survey of the town (now city) of Reno. On the 4th day of September, 1901, and for some time prior thereto, the respondent was the owner by title deeds of lots 45, 46, and 47 of said river front, and was the owner of the same continuously from said time down to the institution of this action. On the said 4th day of September, 1901, one C. S. Martin was the owner of said lot 48, and other lots in said river front lying to the east thereof. On the 7th day of May, 1906, the said C. S. Martin conveyed said lot 48, together with lots 50 and 52, in said river front, to W. H. Pierson, M. E. Cafferata, J. Pickard, and P. Saturno, which said grantees subsequently, and on the 28th day of September, 1906, conveyed said lots to the appellants herein.

It appears from the testimony that on the said 4th day of September, 1901, the said C. S. Martin became aware that the respondent, Ida Robbins, was constructing a building on what was believed by her to be lot 47, the said C. S. Martin, believing that said structure extended over a portion of said lot 48, then owned by him, personally made certain measurements of what he supposed at the time definitely located the dividing line between said lots 47 and 48. From the measurements so made by him at that time, it appeared that the respondent was encroaching upon lot 48 a distance of five feet. The said Martin notified the respondent that her building was extending over his lot 48 a distance of five feet, and requested her to remove the same therefrom. He then set a stake at a point which he claimed to be the dividing line between said lots. The respondent accepted as correct the division line so designated by the said Martin, caused the building which she was then constructing to be moved to the west a distance of five feet, built a fence along the division line as indicated by the said Martin, and proceeded to improve the ground to the west of said line by building a stone wall along the river, and filled in said lot; the improvements so made by her being estimated to be of a value of $1,800. After the said division line was so designated by Martin and acquiesced in by the respondent in September, 1901, no further question was raised as to the correctness of said line until shortly prior to the institution of this action, a period of about six years.

It further appears from the testimony that in locating the boundary line between said lots 47 and 48 the said Martin measured 125 feet westerly from a certain fence, which he supposed, and for many years prior thereto had supposed, marked the boundary line between lots 52 and 53 of said river front, having been so informed many years prior thereto by his immediate grantor, but which fence was not in fact on said division line between lots 52 and 53, but was 22.8 feet east of the same.

From a letter written by the said C. S. Martin of date August 30, 1908, and introduced in evidence without objection, appears what may be regarded as a correct statement of facts, which accounts for the error in locating the dividing line between sáid lots 47 and 48: "I measured with a tapeline 125 feet from what I supposed was the easterly line of lot 52, of the river front, Chinatown lot coming next being No. 53. Now when I purchased said lot 52, also lots 48 and 49 of Contract and Finance Company (C. P. R. R. Co.) their townsite agent, D. H. Haskell, had built a plank fence as a division line between lots 52 and 53, said Haskell at that time being a one-half ow;ner of all of Chinatown: Now when I purchased said lots 48, 49 and 52 from railroad company through its agent, Haskell (now deceased), I did not question for a moment but that the fence he had built as a dividing line between lots 52 and 53 was a correct boundary line. Time rolled on for perhaps over twenty years more, in the meantime I purchased all of Haskell’s interests in Chinatown. In the course of fourteen or fifteen years, more or less, myself and A. H. Manning sold all of Chinatown to F. J. Peck, Charles May, et al., who after becoming owners of Chinatown had a survey made thereof and found that Mr. Haskell had made a mistake as to the dividing line between lots 52 and 53. The survey made by Peck, May and Company established a line twenty, more or less, feet westerly from where Mr. Haskell had his dividing line fence. This shows that Mr. Haskell, being the owner of Chinatown, made a mistake of twenty feet of ground, more or less, not in his favor, but against himself. He used twenty or more feet belonging to Chinatown, Miss Robbins used twenty or more feet belonging to me, her westerly neighbor used twenty or more feet belonging to her, and such has been the case for twenty-three or twenty-four years. ”

Upon the foregoing state of facts, a judgment'was entered in favor of the defendant. From the judgment and from an order denying plaintiffs’ motion for a. new trial, they have appealed.

Counsel for appellants in their brief contend that this case should be determined in appellants’ favor upon the application of the following rale: "An agreement between adjoining owners establishing a disputed boundary line is generally conclusive upon them and persons claiming under them, but when the intention was to establish the line according to the true boundary and by mistake the parties agreed upon a line which does not conform to such true boundary the line so agreed upon is not conclusive. ”

Conceding, without deciding, that the foregoing is a proper rule in determining the rights of adjoining landowners under a certain state of facts, nevertheless we do not think it is the rule controlling under the facts established in this case. Where, as in this case, a dividing line was established between the property of appellants and respondent by the act of one through whom appellants deraigned title and was acquiesced in by respondent, which was not in fact the true line according to their respective deeds, but in accordance with which they or their grantees occupied their respective lands for a time in excess of that prescribed by the statute of limitations, and immediately after the establishment of such line the respondent makes valuable improvements with reference to such line, on the land supposed to be hers, with the knowledge of the one who established said line, he and his successors in interest are conclusively estopped from questioning it as the true line. (Loustalot v. McKeel, 108 Pac. 707; Horton v. Roghaar, 108 Pac. 21; Kitchen v. Chantland, 130 Iowa, 618, 105 N. W. 367, 8 Am. & Eng. Ann. Cas. 81; Miller v. Mills County, 111 Iowa, 654, 82 N. W. 1040; Pittsburgh Iron Co. v. Lake Superior Iron Co., 118 Mich. 109, 76 N. W. 395; Ernsting v. Gleason, 137 Mo. 594, 39 S. W. 70; Laverty v. Moore, 32 Barb. 347; Corkhill v. Landers, 44 Barb. 218; Adams v. Child, 28 Nev. 169.)

The judgment and order denying plaintiffs’ motion for a new trial are affirmed.