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33; and lots 7 and 8 in block 31; all of said | allegations of the complaint were admitted lots and blocks being situated in the town of by the answer, or not denied. The rule is Parma, as designated by the plat of said well settled that where the facts admitted by townsite now on file in the office of the coun- the answer and the findings made by the ty recorder of Canyon county, Idaho." court sustain the judgment, the judgment will

This appeal was taken by Bates; the Par- not be set aside because the findings alone do ma State Bank did not appeal.

not sustain the judgment, as findings are not Counsel for respondent 'has interposed a necessary when the facts are admitted in the motion to strike out the bill of exceptions pleadings; that is, when the answer admits containing the order appointing a referee and the allegations of the complaint, there is no the proceedings before the referee, for the issue of fact made by the pleadings, and no reason that said bill of exceptions is not re finding of fact is necessary in such case. lied upon on this appeal and does not affect Fox v. Fox, 25 Cal. 588; Walker v. Brem, 67 the questions raised on appeal in any manner. Cal. 599, 8 Pac. 320; Taylor et al. v. Central It is provided by section 4818, Rev. Codes, Pac. R. R. Co., 67 Cal. 615, 8 Pac. 436; Miller that on an appeal from a final judgment, the v. Luco, 80 Cal. 257, 22 Pac. 193. There is appellant must furnish the court with a copy no necessity for findings upon immaterial isof the notice of appeal, of the judgment roll sues, nor as to material facts alleged in the and of any bill of exceptions or statement in complaint and not denied by the answer. the case upon which the appellant relies. As Findings should be of the ultimate facts, and the bill of exceptions sought to be stricken not of the probative facts; still, a finding of out was settled before the case was tried, it probative facts is sufficient, if the court is became a part of the judgment roll under enabled to say that the required ultimate the provisions of subdivision 2 of section +436, facts necessarily result therefrom. Miller v. Rev. Codes. That subdivision provides that Luco, supra. the judgment roll shall consist of the plead- Some question is raised as to the effect of ings, a copy of the verdict of the jury or the the return of the deed in January, 1900, by findings of the court or referee, all bills of respondent to Bates, which deed was executexception taken and filed, and a copy of any ed by Bates and wife to respondent. It is order made on demurrer or relating to a contended that the great weight of authority change of parties, and a copy of the judg. is to the effect that the return of a deed by ment. Since, under the provisions of said a grantee to the grantor, even with the intensection 4818, the appellant is required to fur- tion to reinvest the grantor with title, does nish the court, among other documents, the not reconvey any title to the grantor. That "Judgment roll,” it requires the appellant to may be true as a rule of law, but this case furnish all the papers of which the judgment was not tried upon that theory, but was tried roll is constituted. However, in the case at upon the theory that Bates held the legal bar, the bill of exceptions sought to be strick- title, and we shall decide it upon the theory en out consists of about 26 pages of printed on which it was tried. matter and has no bearing upon this appeal Some of the objections raised by appellant whatever, and could have been excluded from are with reference to matters which are ei. the transcript by stipulation of counsel with ther admitted by the answer, or concerning out affecting the questions relied upon on this which no issue is raised by the pleadings. appeal. As it was not so excluded it was There is no issue raised by the pleadings the duty of the appellant under the statute as to whether or not the Parma State Bank above cited to include it in the transcript, has been paid in full the amount borrowed and for that reason, it will not be stricken by Bates from the bank. The complaint al. out on motion.

leges that the amount due said bank is a In limine, it will be observed from the is- debt of the defendant Bates, and that no sues made by the pleadings as above set part of it is the debt of the plaintiff. That forth, that plaintiff claims to be the owner allegation is admitted by the answer, and it of the real estate in dispute, and the defend is now too late for the appellant to contend ant by his answer also claims to be the ab- that possibly the bank has been paill in full. solute owner of the same. The errors assign. While the court did not find specifically the ed are to the effect that the decree is in- amount due the bank from Bates, from the consistent with and not supported by the find- findings made it is clear that Bates wis still ings of fact; that the findings and decree are owing the bank a part, if not all. of plant inuncertain and indefinite and do not cover the debtedness, and directed the appellant in pay issues raised by the pleadings; that the de. thereon the amount of $893.95 found by the cree is contrary to the facts found; that the court to be due from the respondent to Bites. ninth finding of fact, charging Bates with While no specific finding was made in retard $1,236 for rental of house, office, shop, pas- to the indebtedness to the bank, there is no ture, orchard, etc., is contrary to other find- issue in that regard made by the ploailings. ings made by the court, and to the alleged | The bank admitted all allegations of the agreement between the parties.

complaint by failure to answer. It must be conceded that the findings are It is contended that the findings of fact are not as full and complete as they might have indefinite and uncertain and do not cover the been made, and also that a number of the issues made by the pleadings in that they fail to show what part of the property, which cipally upon the ground that the findings are has been conveyed to Bates by respondent, contradictory and not sufficient to support has been sold by Bates and the bank. As we the judgment. understand it, the list and description of We have not taken up and discussed each property so sold was set out in the complaint of the specific errors assigned, but have exin paragraphs 10 and 13. The tracts of land anined them all and are satisfied that the set out and described in the complaint as judgment of the trial court ought to be sushaving been sold are all admitted to have tained, and it is so ordered. Costs are been sold, except lot 8 in block 35. There awarded to the respondent. then was no issue raised on that question, except as to lot 8 in block 35.

AILSHIE, J., concurs. It is also contended by counsel that the description of the property in the decree does not follow any description in the com

(18 Idaho, 345) plaint. We tind that the property referred to

BROWN et al. v. BROWN. in the decree is particularly described as

(Supreme Court of Idaho. June 21, 1910.) above set forth in this opinion, and specifically excepts certain lots and blocks from the

(Syllabus by the Court.) operation of the decree, and is the property 1. ADVERSE POSSESSION ($ 13*)-OCCUPANCYdescribed in the complaint. While the lots

STATUTORY PROVISIONS. referred to as having been conveyed to Man- Codes, to obtain title by adverse possession, the

Under the provisions of section 4013, Rev. sell and the Oregon Short Line Railway Com- land is deemed to have been possessed and ocpany are not specifically described in the de- cupied in the following cases only: "(1) Where cree, from the conveyance to those parties it has been protected by a substantial inclo

sure; (2) Where it has been usually cultivatthe description of those tracts may be made ed or improved. Provided, however, That in specific and certain, and the decree is to the no case shall adverse possession be considered effect that respondent and Bates are each an established under the provisions of any sections owner of an undivided one-half interest in land has been occupied and claimed for the

of this Code, unless it shall be shown that the and to the property described in the decree, period of five years continuously, and the party except the portions thereof that had been or persons, their predecessors and grantors, have sold, as stated in the decree and excepted paid all the taxes, state, county, or municipal,

which have been levied and assessed upon such from its operation. It is not contended that land according to law.” any of the property of which Bates and re- [Ed. Note.-For other cases, see Adverse Posspondent are decreed to be the equal owners session, Cent. Dig. SS 65–76; Dec. Dig. 13.*] has been sold or conveyed by Bates, and if 2. BOUNDARIES (8 37*)-ESTABLISHMENT-ACthe court has failed to include in its decree QUIESCENCE-EVIDENCE. land that ought to have been included, Bates sufficient to support the findings of fact to the

Held, that the evidence in this case is not will not be permitted to complain for that effect that the division line fence has been rereason. If he is not required to convey to re- garded by all of the parties concerned or interspondent some of the property which it is ad- ested in said boundary line as the true and mitted in the answer should be conveyed, re

correct boundary line, and acquiesced in as the

true and correct boundary line. spondent is the only man injured.

[Ed. Note.-For other cases, see Boundaries, After a careful review of the whole case, Dec. Dig. § 37.*] we are of the opinion that the judgment and 3. Case DISTINGUISHED. decree are sustained by the admissions of the Held, that the facts of this case do not answer and the findings of fact.

bring it within the rule laid down in the case It is contended that the court erred in of Bayhouse v. Urguides, 17 Idaho, 286, 105

Pac. 1066. charging appellant Bates with $1,236 for 4. BOUNDARIES (8 48*)-ESTABLISHMENT-PRErental value of the house, office, shop, pas- SUMPTION FROM ACQUIESCENCE IN MAINTEture, and orchard connected with said prem

NANCE. ises, There is nothing in this contention, fence for a great length of time may be pre

Acquiescence in the maintenance of a line since it is apparent from the record that re- sumptive evidence of an agreement as spondent turned the property over to Bates boundary line, but is not conclusive evidence, under a contract that the net proceeds should and will not overcome a positive agreement or be divided between the respective parties. If tablished, the fence will be made to conform

understanding that after the true line is esthere were $1,236 realized from said prem- to it. ises for rental on the house, etc., that certain- [Ed. Note.-For other cases, see Boundaries, ly was a part of the profits from the prem- Cent. Dig. $$ 232–242; Dec. 'Dig. $ 48.*] ises and came within the provisions of the 5. ADVERSE POSSESSION (8 114*)-SUFFICIENcontract.

CY OF EVIDENCE.

Where one seeks to procure title to anUnder the well-established rule that find other person's land under the rule of long acings should be liberally construed in support quiescence or adverse possession, he must esof the judgment, we find they are sufficient tablish his right by clear and satisfactory eviin this case.

dence. There is no question raised as

(Ed. Note.-For other cases, see Adverse Posto the sufficiency of the evidence to sustain session, Cent. Dig. 88 682-690; Dec. Dig. $ the findings, but the contention rests prin-1114.*]

to a

Appeal from District Court, Ada County; and Dobson thereafter conveyed it to Harris, Fremont Wood, Judge.

and Harris to the respondent, E. B. Brown.' Action by Otis Brown and others against There is no question but that the land in E. B. Brown. Judgment for plaintiffs, and dispute is a part of the N. 12 of the S. E. defendant appeals. Reversed and remanded 14 and lot 3 of said section 24, as per governfor new trial.

ment survey, which land was originally en. Good & Adams, for appellant. W. B. Da-tered and patent procured from the governvidson and Harry Keyser, for respondents.

ment thereto by the said Rhodes, and the

claim of respondents thereto is based upon SULLIVAN, C. J. This action was brought the fact that the division fence between said to quiet the title to about 1.81 acres of land land of Brown on the south and east, and on situated in Ada county. The complaint is the north and west, of the Rhodes land was in the usual form of one to quiet title and from 9 to 12 feet in on the north side of the prays that the defendant be required to set Rhodes land, and 122 feet in on the west forth the nature of his claim and that the side of the Rhodes land, making an area of title be quieted in plaintiffs.

1.81 acres in dispute. It is alleged in the complaint that there

In support of their contention, the respondhad been maintained a division fence be- ent Mrs. Caroline Brown testified that she tween the lands of plaintiffs and defendant had resided on the land claimed by the refor 30 years, and that said division fence was spondents since 1883; that she is acquainted constructed by one Peter Brown, the prede- with the Rhodes ranch now occupied by the cessor of plaintiffs, and one G. F. Rhodes, appellant, E. B. Brown; that there was a one of the predecessors of the defendant, and division fence between the Peter Brown at the time it was so constructed, was es- ranch and said Rhodes ranch at the time she tablished by said Brown and Rhodes as the first became acquainted with it, part of true and correct boundary line between their which was wire, and part brush; that that respective lands; and it is also alleged that fence had never been changed from that line, said line fence has been regarded by all of but there had been a new fence put on the the parties concerned or interested as the line, built in the same place the old fence was true and correct boundary line between said built, and that is the fence that is now sitlands for 30 years.

uated there; that it is in the same place the The defendant in his answer denies the fence was in 1883 when she first knew the material allegations of the complaint on in- land; that her deceased husband, Peter formation and belief, and by way of cross. Brown, in his lifetime farmed the Peter complaint, alleges that he is the owner and Brown ranch up to that fence; that it was entitled to the possession of the land in dis- cultivated in 1883 and has been continuously pute as a part of the N. W. 14 of the s. since; that Rhodes lived on the adjoining E. 14, and also of other lands in the N. W. ranch up to five or six years prior to the 14 of the S. E. 14 and a part of lot 3, all trial of this action, when he sold the land to in section 24, township 4 N., R. 1 E., B. M., one Dobson; that there was never any disin Ada county, which described land includes pute between said Rhodes and said Peter the land in dispute.

Brown as to the boundary line between said Upon the issues thus made the cause was lands; that each party was occupying up to tried by the court without a jury and judg- that time the land on the respective sides of ment entered in favor of the plaintiff, as said fence; that the fence was kept in repair prayed for in his complaint. The court by both of the parties. thereafter denied a motion for a new trial, Another witness testified on behalf of the and this appeal is from the judgment and or- respondents that he had known said ranch der denying a new trial.

since 1882; that he was employed on that The errors assigned go to the sufficiency ranch in 1882 and continued to be employed of the evidence to sustain the findings and there off and on for about 10 years, that he that the court erred in entering judgment was acquainted with the Rhodes ranch adfor the plaintiff.

joining the Brown ranch; that at the time It appears from the evidence that one there was a division fence between said Peter Brown, the husband of the plaintiff ranches; that it consisted of a wire, a worm, Caroline Brown, became the owner of the S. and a brush fence; that it was a complete 12 of the N. W. 14 and all that part of the division fence between said ranches; that it S. W. 14 of the N. E. 14 lying south and west looked as though it had been there four or of what is known as the Valley road, and lot five years; that the division fence now beNo. 4, of section 24, Tp. 4 north of Range 1tween said ranches stands in the same posiE., B. M., as early as 1882. In 1870, G. F. tion and on the same line as the old fence Rhodes became the owner of the N. W. 14 when he first knew the land in 1882, that is, of the S. W. 14 and a part of the N. W. 14 that it looked to the witness to be in just of the S. E. 14 and lot No. 3 of said section the same place, and testified as follows: "Any 24, consisting of 126 acres of land, and con- more than, of course, a wire fence, you know. tinued to own it until about July, 1906, when backs up about four feet, I judge"; that the be sold and conveyed it to one Len Dolson Rhodes ranch was cultivated up to the line

fence; that Peter Brown kept up a part of that neither of them knew where the true the fence and that Rhodes kept up the other line was; that they just put the fence there; part.

that witness paid all taxes on the land in Otis Brown testified on behalf of the re dispute during all of said time, including the spondents that he was the son of Peter entire 126 acres in said ranch. Witness also Brown; that he was 25 years of age and that testified that he did not object to the conhe had lived on the Peter Brown ranch all struction of the east and west fence where his life; that he is acquainted with the divi- it was placed; that they did not know where sion line fence; that said fence has been in the true line was; that so far as he was conthe place where it now is for 12 or 13 years, cerned, he gave his permission to have the or as far back as witness could remember; fence erected at that place for the time bethat it had not been changed since that time; ing; that neither the plaintiffs nor their predthat the Brown ranch had been cultivated ecessors in interest at any time paid any continuously up to the line fence, and that taxes on the land in dispute but that witthe Rhodes ranch had been cultivated up to ness bad paid all such taxes; that they the said line fence.

agreed to put the fence where it was placed ; Another witness testified on behalf of the that their understanding was they would put respondents that he had known said ranches it on a true line when the survey was made; since 1882; that he had worked for Peter that was the understanding between witness Brown along in 1882 or 1883, about a month and Brown; that so far as witness knew, unor two and had worked for him a few times til recently the line had never been surveyed; since; that at the time he went to work for that there never was any talk or agreement Brown there was a division fence between between witness and Brown that he was to said ranches; that said fence consisted of have and receive any portion of the land bewire and brush; that in 1882 said fence was longing to Rhodes by reason of the erection an old fence; that witness had been on the of said fence; that they simply agreed to ranch but very little since 15 or 16 years be place the fences where they were, and the fore Brown's death. That was substantially understanding was that they would have a all of the evidence offered by the respond- survey made some time; that Brown stated ents.

he was not satisfied; that he thought the G. F. Rhodes testified, by deposition, on be- fence was over on his land, but was satishalf of the appellant. He testified that he fied to let it remain until a survey could be became the owner of the Rhodes land re- made. ferred to in 1870 and had owned it until On cross-examination he testified that the about six years prior to July, 1909; that he east and west line was probably run between was well acquainted with the Brown land ad- 15 and 18 years before Peter Brown died; joining on the north and west of the Rhodes that witness did not regard the line between land; that witness owned the land mention the respective lands as the true line, but ed at the time there was a partition fence thought it was somewhere near the line; erected between said ranches. The partition that there was present when the north and fence running north and south was erected south line was run by the boy's shadow, 15 or 16 years prior to the trial. When the Brown and witness, and the fence was erectconstruction of that fence was arranged for, ed by the line staked out by the boy's shadow the only persons present were the witness and from that time on witness left the fence Rhodes, his son, and the said Peter Brown. stand on that line; that during all of that time At that time the son was between 15 and 17 they used that as a division fence between years old. That Brown came to Rhodes and their farms; witness never made any objecwanted to put up a fence and build it on tion to the fence being where it was and the line, or as near the line as they could; never demanded any survey; that he did not that Brown informed the witness Rhodes claim any of the land lying within the inthat he had seen D. O. Stevenson, a surveyor, closure of Brown's field, because he did not in regard to his establishing said division know it was there; that when the said line, but that Stevenson had not the time fences were erected, he supposed they were to do it and told him that if he would go somewhere near the line; that the east and at noon and run it by the shadow of some west line was run by the Green Meadow one who would stand on the corner, that that ranch, which some one had informed them would give the north and south line; that was on the true line; that neither of them they did not know where the corner was, but believed at the time said fence was erected that they guessed at where it was and the that it was upon the true line, but that it boy stood on the corner, or where Brown and was somewhere near it; that they just put the witness thought it was, and they ran the the fence there until a survey should be line by the boy's shadow; that that was the made; that neither of them objected to havway they arranged to construct the north and ing the fence put where it was; that there south fence; that neither Brown nor witness was nobody present that the witness knew knew where the line was; that they did not of when the east and west line was estabestablish the line for the fence running east lished; that witness was not there; that and west ; that Brown put up his part of the there was a rail fence there and that wit

that he put his wire fence back a little; that to the trial of this cause, and had been in witness "hooked on" to Brown's fence and its present position since that time; that it made his part of the east and west division was established by said Brown and Rhodes fence; that Rhodes at all times claimed all as the true and correct boundary line beof the land included in the description of tween their respective premises; that said his patent from the government and claimed fence had been regarded by all the parties all of the land that said patent called for. concerned or interested as the true and cor

The son of the last-mentioned witness also rect boundary line between said premises testified by deposition that he was 30 years for 25 years, and had also been so regarded of age; that he was acquainted with the 126 since it was originally constructed, and that acres of land known as the Rhodes ranch, said fence during all of said period had been and also the Peter Brown ranch adjoining; acquiesced in as the true boundary line bethat he remembered when there was a fence tween said premises; that the plaintiffs and erected between the land owned by his fa- their predecessors had been in open, notother and that owned by Peter Brown; that he rious, continuous, and adverse possession of was present and assisted in the establish- the land in dispute since said fence was ment of the fence; that there was present at established or originally constructed, and that time Peter Brown, witness, and his on said findings entered judgment in favor father; that witness remembered seeing them of the plaintiffs, quieting the title in them. run the line; that witness stood on what The court evidently did not base its dewas supposed to be the corner, and that they cision upon the ground of title by adverse ran the line by his shadow, and that the possession, as under the provisions of secnorth and south fence was erected between tion 4043, Rev. Codes, to constitute adverse his father's ranch and the Brown ranch in possession and obtain title thereby, the land that way; that they built the fence as near is deemed to have been possessed and occuas they could, and if a survey was made, pied in the following cases only: "1. Where if it was not on the true line, it was the it has been protected by a substantial enunderstanding that the division line fence closure. 2. Where it has been usually culwould be erected upon the true line; does tivated or improved. Provided, however, not remember who built the first part of That in no case shall adverse possession be the east and west fence; that witness was considered established under the provisions 15 or 16 years old when the north and south of any sections of this Code, unless it shall fence was built. It was stated there that be shown that the land has been occupied when a survey should be made, they would and claimed for the period of five years conerect the fence on the correct line.

tinuously, and the party or persons, their On cross-examination the witness stated predecessors and grantors, have paid all the that he did not know anything about when taxes, state, county, or municipal, which the east and west fence was built, and that have been levied and assessed upon such land there was a rail fence upon the east and according to law." west line at the time the north and south Under the provisions of that section, one fence was erected; that as near as witness cannot obtain title by adverse possession, could remember, it was about 60 feet in on unless it shall be shown that the land has his father's land, and that they moved his been occupied and claimed for a period of father's fence out on Mr. Brown's land; five years continuously, and that the party that as near as he could remember, the old or persons, their predecessors and grantors, rail fence was over on Brown's land; that have paid all taxes, state, county or municithey did not establish the east and west pal, which shall have been levied and assessline, and that he did not know when the ed upon such land according to law. In old rail fence was put there; that they did the case at bar, it appears from the evidence not establish the north and south fence as that the respondents have never paid any being on the true line; that they put up that taxes whatever upon the land in dispute, fence at that time with the understanding and that the appellant and his grantors have that when the true line was established, if paid all the taxes legally assessed against the fence was not on it, they would move the said land for more than 25 years last past. fence to the true line; that that arrangement There is no evidence whatever to sustain the was satisfactory to Mr. Brown until a sur finding of the court to the effect that it was vey should be made.

stipulated and agreed between the parties The above and foregoing is the substance that said partition fences were on the dividof all the evidence introduced, except that ing lines between their tracts of land. In of a surveyor who had surveyed the lines fact, all of the evidence upon that question and made a plat of his survey, which plat is directly contrary to that finding. Rhodes was introduced in evidence. Upon the evi- testifies positively that it was never stipudence the trial court found that the plain-lated and agreed, or understood, that said tiffs and their predecessors for more than fences should be the boundary lines marking 25 years, had had possession of and culti- the land owned by each. vated the strip of land in dispute; that the The witnesses for respondents were evidivision fence was constructed by said Peter dently testifying in regard to the east and Brown and Rhodes more than 25 years prior / west fence when they stated that that feuce

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