McNamee v. Moreland. The first agreement, above mentioned, was filed in the Dubuque District Court, after the causes had been removed thereto, in virtue of the second one; the said second agreement being signed by counsel for plaintiffs and defendants. In April, 1856, the case of Moreland v. Page being in this court, upon appeal, final judgment was here entered, reversing the judgment of the court below, and further ordering that a line drawn, etc. (describing the "James line," or the line "CD"), should constitute the true line between the parties to this suit, and that appellant recover his costs, etc. From this judgment Moreland appealed to the Supreme Court of the United States, and, in June, 1859, a mandate of said court, dismissing said appeal, was filed with the clerk of this court. Plaintiffs offered all these records and proceedings in evidence for the purpose of showing that the "James line," so called, was the established line, dividing, etc., and that defendants were estopped from denying that this was the true line, to which defendants objected, and the papers were excluded, because the parties to that action were not the same-as in this, and plaintiff excepted. Plaintiff then proposed to show, that, by the agreement and understanding between himself and David Moreland, in the suit prosecuted against Page, he (McNamee) became the real party defendant, instead of Page, his tenant, and did, in fact, defend said action; that Page was his tenant, and that it was so understood; that the question submitted in that case covered the whole subject in dispute in this, to wit, the location of said dividing line. To all this evidence defendant also objected, and it was excluded because it could only be shown by the record that McNamee was a party, and plaintiff again excepted. The documentary evidence before rejected was after McNamee v. Moreland. ward admitted, to show that Moreland did not have undisputed possession of this strip of land, and also to show that there was controversy, but for no other purpose. These defendants, and those under whom they claim, have been in possession of the greater portion of this strip since in 1852, and perhaps as early as 1850, and, indeed, claiming to the "Bailey line" as early as 1842; said lines being run at Moreland's instance in that year. Moreland bought from the United States in 1839; McNamee bought of the government after this, what date is not shown, but his patent was obtained in 1846. The witness, Page, testified, without objection, that he bargained for a piece of land from plaintiff (being the acre excepted from plaintiff's present claim), upon which he built a shop and cut a road; that Moreland brought his action of trespass; that McNamee and another employed the attorney; that they paid all expenses after the agreed case was made; that he had nothing to do with it. after this, they agreeing to save him from costs if he would let them use his name. It very conclusively appears, that, while Moreland claimed to the "Bailey line," made and occupied his improvements north of the "James line," and claimed to have title thereto for more than ten years, yet he based his claim alone upon his title from the government, which he insisted took him to the north, or "Bailey line." He was aware that the line was in dispute when he built his fence, and at no time was the correctness of his claim conceded. He never pretended that he owned any land in the north half of the section. A great number of instructions were asked, some given, others modified, and still others refused. The following will serve to indicate the view of the law as entertained by the court below: Plaintiff asked this instruction: "If the jury believe VOL. XXVI. — 14 McNamee v. Moreland. that the controversy in this case arose out of a dispute as to the line, and that defendants and their ancestor, under whom they claim, set up no title other than his patent, and only under it, if it covered the disputed strip, that would not constitute such an adverse holding as would entitle them to the benefits of the statute of limitations." To which the court added: "Provided, however, if defendants and their ancestor asserted their claim by the erection of a fence on what they claimed to be within or on the bounds of their land under their patent, and took and retained actual possession up to such fence, with the intention to claim up to the same, claiming a right so to do, and such adverse possession, with such intention, has been held by defendants or their ancestor for ten years, or longer, before the institution of this suit, then such adverse possession is a bar to plaintiff's recovery, as to any part of the land within the fence so erected." This instruction asked by plaintiff was refused: "In order to entitle defendants to the benefit of the statute, they must show that they have been in peaceable and quiet possession, under color of title, for a period of ten years since the question as to where the dividing line is, separating the north half from the south half of section four, was determined by the Supreme Court in the case of Moreland v. Page." At defendant's instance, the jury were also told that "actual adverse possession for ten years under color of title, would bar the recovery; and further, that if defendants and their ancestor were in possession of the premises in dispute for ten years preceding the commencement of this suit, the same being held under color or claim of title and against all others, then their verdict should be for defendants." The jury found specially that Moreland occupied the land north of the "James line," under no other claim than his patent for land in the south half of the section, McNamee v. Moreland. that he claimed no interest in the land conveyed by plaintiff's patent, but that he did claim to the "Bailey line," and that defendants and their father had held continuous adverse possession of the premises in dispute for more than ten years, etc. 1. ADVERSE POSSESSION: Thus we have the body of the case extracted from a most voluminous mass of papers. Other facts might be stated, bearing upon other questions made; statute of lim- but as they are immaterial to the points upon itations. which the case must turn, they are omitted. Upon two grounds it seems to us that this judgment is The first is, that, in view of the agreements of the parties, defendants cannot date their adverse possession prior to 1853; and in the second place, we cannot resist the conviction, that the present plaintiff would have been concluded by the decision in the case of Moreland v. Page, if it had been adverse, and that he is, therefore, entitled to the benefit of it in the present action. erroneous. It may be conceded, that the doctrine of Burdick v. Heirly (23 Iowa, 511) is correct to the extent claimed by appellees, and still the first ground stated for the reversal would not be shaken, for this is not a case where defendant's built their fence by agreement with plaintiff, nor where the division line was agreed upon. Nor was there, at any time, acquiescence on plaintiff's part, that defendant's should occupy to a given line. Nor again will we stop to discuss the correctness of the rule stated in Brown v. Cockerell (33 Alabama, 45), to the effect that "if a party occupy up to a certain fence, because he believes it to be his line, but having no intention to claim up to the fence if it should be beyond the line, an indispensable element to adverse possession is wanting." The argument in favor of the rule is, that "the intent to claim what is set up, is upon the condition that the fence is upon the line, or if the fence is put over the line McNamee v. Moreland. from mere convenience, the occupation and exercise of ownership are without claim of title, and the possession would not be adverse;" and in this connection compare with Burdick v. Heivly (supra) the case of Howard v. Reedy (29 Geo. 154); see also Burnell v. Maloney (39 Verm. 583), Stevens v. Taft (11 Gray, 35), Burrell v. Burrell (11 Mass. 294), Holton v. Whitney (30 Verm. 410), St. Louis University v. McCune (28 Mo. 481), Brown v. King (5 Metc. 173). The doctrine asserted in the Alabama case is not in conflict with that, before cited, in this court. It is possible that it carries the rule too far, and indeed that it does not impair too much the force and effect of actual adverse possession, may be questioned. For every party who builds his fence, or otherwise takes adverse possession to a certain line, is supposed to do so with the belief that he has the right under his title, and with no intention to claim what is beyond the true line. And yet, however erroneous this rule, it would not disturb the proposition that if the possession was by agreement with the true owner of the title, or as the result of convention, it could in no sense be regarded or treated as hostile. Nor could the possession taken be adverse in its nature, nor of course in derogation of the rights of the true owner; and yet such it must be before defendants can rely upon it as conclusive evidence of an absolute title. For, in all these cases, the party relying upon the bar must hold, not only by a possession actual, open and adverse, but it must be maintained as a right resulting from an exclusive property in, and dominion over, the estate, and not subordinate to the will of another. 3 Wash. R. P. 483, marg. The whole doctrine of adverse possession rests upon the presumed acquiescence of the owner (Benje v. Creagh, 21 Ala. 151), and no one would certainly claim, where the true owner was constantly asserting his rights and the |