McNamee v. Moreland. If one enter upon land and procure the deputy surveyor to make a survey on the ground, without a warrant or other authority, such survey is competent evidence of the extent of the claim of the settler, and if he continue in possession for twenty-one years, the act of limitation will protect him in his title, to the extent of his claim, as designated by his survey." Lawrence v. Hunter, 9 Watts, 74. It is settled beyond dispute, that an occupation up to a fence for the requisite time, gives a party an incontestible right to hold up to the fence, and equally whether the fence is on the right line or not. Brown v. McKinney, 9 Watts, 567. A fence, building, or other improvement is not essential to constitute an adverse possession; acts of ownership, under a claim of right, visible and notorious, are sufficient, and depend on the uses to which the land may be put. Adverse possession, with full knowledge of an older and valid title, is a bar under the statute. Ewing v. Burnet, 11 Peters, 41. Ten years' adverse possession will settle division lines between adjacent owners. See Burdick v. Heively, 23 Iowa, 511. 2. The eighth error assigned can not be considered by this court, for the reason that the appellant did not include it in his motion for new trial before the court below. 3. Any stipulation made between Moreland and Pago referred solely to the one-quarter acre tract in controversy in that action. By no possible rule of construction can the stipulation be construed to extend to other land in which Page has no interest whatever. 4. If the appellant relies upon the estoppel, he must show either a former adjudication (and if he relies on this as a plea in bar, it must be pleaded), rendered in an action between the same parties relative to the same subject McNamee v. Moreland. matter, and decided upon the same issue as the one presented in the present action. Spooner v. Davis, 7 Pick. 148; Outram v. Morewood, 3 East, 346; Haight v. City of Koekuk, 4 Iowa, 207. Or else he must prove an estoppel in pais, and that is only allowed to prevent fraud and injustice, and has no application to the case before the court. Lucas v. Hart, 5 Iowa, 419; 1 Story's Equity, § 391. Parol evidence is not admissible to show that some matter or point not embraced in the pleadings was in fact submitted. Standish v. Parker, 2 Pick. 22; Smith v. Sherwood, 4 Conn. 276. 5. Appellant endeavors to show that the verdict of the jury was erroneous, at least so far as the strip of land not inclosed within Moreland's fence is concerned, and to support this view quotes 2 Washburn on Real Property, and 2 Serg. & Rawle, which hold that possession acquired by a wrongful entry extends only so far as the tenant shall actually occupy. McNamee never at any time held the actual possession of any part of the strip of land in dispute in this case. Moreland entered upon the land, claiming to the Bailey line, and has since 1842, or earlier, exercised acts of ownership over the whole of it up to that line. These acts were varied in their nature, but are fully sufficient to satisfy any one that he claimed the land to the Bailey line and used it according to the custom of the country up to that line. This evidence satisfied the jury, and they found that Moreland had occupied the whole premises by adverse possession for ten years and over. This settles the point. The question raised by the defendant's plea of the statute of limitations was fairly and properly submitted to the jury, and they found thereon in favor of the defendant. McNamee v. Moreland. It was the province of the jury to decide this question, and the verdict will not be set aside, unless clearly and manifestly against the weight of evidence, and in this case the verdict accords with the weight of evidence. Brockman v. Berryhill, 16 Iowa, 183. 6. To constitute possession of land, there must be some unequivocal act of ownership upon it, which may be otherwise than by inclosing it with a fence. The intention or animus of a party as connected with his action indicating ownership, is a question for the jury, and where it appears that such acts of ownership are in good faith, with the design to exclusively appropriate the land, a verdict will not be disturbed, especially when it is the fourth one on the same question. Brooks v. Bruyn, 24 Ill. 372. Possession by defendant with a claim of title, for the statutory time, can no more be answered by averring that he knew he was wrong, than could the bar of two years, in slander, by the known falsehood of the libel. So long as a man is in possession of land, claiming title however wrongfully, and with whatever degree of knowledge that he has no right, so long the real owner is out of possession in a constructive as well as an actual sense. Humbert v. Trinity Church, 24 Wend. 586, which fully discusses the object and intent of the statute of limitations. 33 Penn. 331. The doctrine of the courts, therefore, evidently is that where a grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and occupies and improves lands not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the statute of limitations, and if continued for the requisite time, will bar the right of the true owner. Crary v. Goodman, 22 N. Y. 174. McNamee v. Moreland. A constructive possession of the unimproved part of the lot, would remain in him who made the first entry under claim of title, and improved a part. Jackson v. Vermilyea, 6 Cowen, 680. WRIGHT, J.-This case may be called, not inaptly, the sequel to Moreland v. Page, 2 Iowa, 139, decided in 1855. The parties own land, the plaintiff north and down to the center line, east and west, dividing sec. 4, T. 90, R. 3, the defendants south, and claiming to the same line as their northern boundary. And thus it will be seen, that as they claim to the same line, the one from the north and the other from the south, the point of controversy must be as to the true location of such line. In the previous case, Moreland, the ancestor of defendants, and plaintiff therein, insisted that his northern boundary was the line "A B," known as the "Bailey line," whereas Page insisted that the line "C D," known as the "James line," a line running south of line "A B," was the true boundary. It was there held that the line "C D" was the true one, and plaintiff, Moreland, as a consequence, failed in his action. On the trial of this case in the court below, defendants were not allowed to controvert the validity of this prior adjudication. They relied upon their defense of adverse possession, running back to a period more than ten years before the commencement of this suit. Plaintiff, to defeat the bar thus set up, relied, for the most part, upon this prior adjudication, or we should perhaps say two prior adjudications. And whether defendants are estopped by such adjudications and proceedings is, in effect, the sole question involved in this record. There may be others, subordinate, but this is conceded to be the one upon which the case turns. In examining it we must first state some facts material to its disposition. McNamee v. Moreland. David Moreland, in the former case, by his petition, claimed the E. of the S. W. and W. of the S. E. 1, sec. 4, T. 90, R. 3; that the northern boundary of said lands was the "Bailey line," "A B"; that Page was in possession of so much of said land as was between the lines "CD" and "A B"; that defendant claimed to be the owner, and that the line "CD" was the true line; that the claim was unfounded and that he was not the owner, and therefore, etc. The answer of Page denied that plaintiff was entitled to the land to the line "AB"; claimed that he was the owner of the strip, and that "CD" was the true line. At the October Term, 1853, the parties entered into a stipulation by which it was agreed that the question in dispute was the position of the east and west line dividing the north from the south half of section. four; that if defendant should be found to be upon plaintiff's land, plaintiff was to have judgment for nominal damages and costs, and if not upon his land then judgment should go for defendant. In June, 1853, an agreement in writing was made as follows: * * "It is agreed by the parties to the above suits now pending in the District Court of Delaware county, that they shall be removed to Dubuque county for trial. And when a final hearing or decision is had, either party to place his fence, etc., upon the line which shall be established by such decision, and the road to be upon such ascertained line. "In the mean time, until such decision, no further steps are to be taken to establish said road south of the line claimed by the Morelands, or within their inclosure." |