Opinion
December 14, 1926. Rehearing Denied March 11, 1927.
PLEADING: Amendment — Substitution of Real Party in Interest. 1 Amendments are allowable which substitute the real party in interest, even though such amendment is filed during the actual trial.
BOUNDARIES: Acquiescence — Pleading Governmental Descriptions —
Effect. by their governmental descriptions.
BOUNDARIES: Acquiescence — Effect. Principle reaffirmed that the 3 adjoining owners of land may, by long acquiescence, irrevocably fix on a line different from the line shown by the governmental survey.
Headnote 1: 32 C.J. p. 304; 31 Cyc. p. 485. Headnote 2: 9 C.J. p. 248 (Anno.) Headnote 3: 9 C.J. pp. 244, 245, 247, 286.
Headnote 1: 21 R.C.L. 584. .Headnote 3: 4 R.C.L. 128.
Appeal from Carroll District Court. — M.E. HUTCHISON, Judge.
Suit in equity, to enjoin the defendant from moving a certain boundary-line fence and from constructing a fence so as to encroach upon the land claimed by the plaintiff. The trial court granted an injunction as prayed, and the defendant appeals. — Affirmed.
Brown McCrary and John E. Haltigan, for appellant. W.C. Saul and W.I. Saul, for appellee.
I. During the course of the trial it appeared that plaintiff's wife held the legal title to the land in controversy, and she was substituted as plaintiff. Appellant complains of the order of the court in overruling appellant's objection to 1. PLEADING: such substitution. The objection was without amendment: merit. The amendment was authorized under substitu- Section 11182, Code of 1924, and the court did tion of real not err in permitting it. party in interest.
II. The appellee in his petition described the premises owned by him by governmental subdivisions, and also alleged that the appellant owned the adjoining premises, which were similarly described. The appellant contends that the 2. BOUNDARIES: appellee, having described the appellant's acquie- premises by the governmental subdivisions scence: thereof, cannot claim that the boundary line pleading between said premises is at any other place than governmental upon the true line of the governmental survey. descrip- Appellant contends that the fence in tions: controversy which the appellant undertook to effect. build was to be located upon the true government line, as shown by the government survey, and that, because of the appellee's allegation that the appellant owns the land described by governmental description, there can be no question involved in this case except the mere question of ascertaining the location of the true line, as shown by the government survey, which the appellant contends is not disputed under the evidence. In this contention the appellant misconceives the true nature of this action. The action is not one brought to establish a lost boundary, under the statute. The appellee's contention is that, regardless of the location of the true government line, by reason of a long period of acquiescence in the maintenance of a fence the adjoining landowners have established a boundary line between the two tracts which they have maintained and acquiesced in as the boundary line for a long period of years, and that, therefore, said line so established and acquiesced in becomes the true line dividing the tracts, regardless of where the government line may in fact be located. In Davis v. Angerman, 195 Iowa 180, we said:
"The law respecting the establishment by acquiescence of boundary lines that depart from the true governmental line has been so frequently announced by this court as to require no reiteration or review of the cases. 3. BOUNDARIES: Unquestionably, adjacent landowners may, by acquie- acquiescence, establish a line that varies from scence: the true line, and the fact of such acquiescence effect. may be established by evidence as to the manner in which the premises have been used by both parties, the building of fences, the planting of trees or other monuments, the erection of buildings, the length of time the property has been so used, and other similar matters. Whether there is acquiescence necessarily depends upon the facts proved in each particular case. If acquiescence in the assumed boundary line is established, then such line becomes the boundary, regardless of the location of the true or correct line. This is the rule we have repeatedly announced."
This rule has been recognized in repeated and numerous decisions of this court since Miller v. Mills County, 111 Iowa 654, and a collection of the authorities is not necessary. The rule is recognized by statute in actions involving the establishment of disputed corners and boundaries. Section 12306, Code of 1924. The record in the instant case brings it clearly within this oft-repeated rule. It appears that, in the year 1888, the then owners of the respective tracts caused a survey to be made of the boundary line now in question, and in accordance with said survey caused a fence to be constructed between the premises of the appellant and the appellee upon the line established by said survey. The evidence shows that this fence has been repaired from time to time, but that, without any substantial deviation, it has been continuously maintained at said place as a boundary line. The adjacent landowners have recognized said line by farming the adjacent tracts of land to said fence for this long period of time. The facts of the case bring it squarely within the well established rule that adjacent landowners may, by acquiescence, establish a boundary line between their respective tracts which, although not the true governmental line, will, by the long-continued acquiescence in and recognition of such line, be established as the true boundary line.
The decree of the trial court is sustained by the record, and it is — Affirmed.
De GRAFF, C.J., and STEVENS and VERMILION, JJ., concur.