ture, or the price of such feed stuffs as would have been necessary to have kept and fed plaintiffs' live stock, or to have shown the price the plaintiffs could have secured for their pasture or the number of live stock they could have pastured thereon, and the value per month for the pasturage of each head of such live stock, and such other evidence of kindred and similar import, which would have enabled the jury to have intelligently fixed the value of the property destroyed at the time of its destruction. Any Any evidence tending to show what the grass was worth when put to any of the uses for which it was valuable should be admitted. Growing grass that is to be used for grazing purposes differs from other growing crops, in that there is no further expense necessary for cultivation and harvesting in order for the owner to enjoy the full benefits of the crop. In such case the crop is marketable and has a market value whenever it is fit for grazing purposes. In cases of injury to or destruction of growing crops the date from which to ascertain and arrive at the true value thereof must be made up of numerous facts, such as the value at the nearest period at which the crop would be marketable, and the labor and expense necessary to bring the crop to the marketable period and preparing it therefor.

This is a case in which we very much dislike to grant a new trial for the reason that it clearly appears to our satisfaction from this record that there was sufficient competent evidence submitted to the jury as to the actual damages sustained by plaintiffs to justify them in rendering a verdict for the amount returned in this case. But there was so much evidence admitted that was wholly incompetent and inadmissible, tending to establish the several allegations of special damages, that we cannot say that the jury was not influenced thereby. This is especially true in the face of the instructions given by the court wherein he told the jury that this evidence was competent for their consideration, and should be weighed by them in arriving at their verdict.

On account of the admission of this line of evidence and the giving of these instructions, the judgment must be reversed and the cause remanded for a new trial in accordance with the views herein expressed, and it is so ordered. Costs awarded in favor of the appellants.

STOCKSLAGER, C. J., and SULLIVAN, J.,

concur.

(31 Utah, 269)

HOLMES v. JUDGE. (Supreme Court of Utah. Dec. 5, 1906.) BOUNDARIES-ESTABLISHMENT-ERECTION IMPROVEMENTS AND FENCES LONG Ac

QUIESCENCE-SUBSEQUENT SURVEYS.

Buildings calculated to mark the boundary line between adjacent lots were erected by the tenants of the owners, with the knowledge and consent of the owners of the lots, and existed 87 P.-64

for more than 30 years, during all of which time rents for the ground upon which the improvements stood were collected by the owners. each for his own lot. A fence conforming to the boundary line as indicated by the buildings was also erected, extending the entire distance of the lots, which was presumably erected by tenants, but with the knowledge of the owners of the lots and acquiesced in by them. Many years after this a survey was made and a new boundary was fixed, which did not coincide with the line of the buildings or fence. The line as fixed by the survey was determined from street monuments which were placed long after the buildings and fence were erected, but for the purposes of the decision the monuments were acsumed to have conformed to the original survey of the city. Held, that the line determined by the erection and continued existence of the buildings and fence, and known and acquiesced in by the owners, constituted the true boundHeld, further, that when a boundary is visibly marked by buildings or fences, and is known and acquiesced in by the owners of the soil for a long term of years, from such knowledge and acquiescence an agreement fixing the boundary in accordance with such improvements will be implied, by which the owners and their grantees will be bound.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 232-237.]

Appeal from District Court, Third District: C. W. Morse, Judge.

Action by G. S. Holmes against Mary Judge. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Henderson, Pierce, Critchlow & Barrette. for appellant. A. Howat, for respondent.

FRICK, J. This is an action in equity, commenced by respondent, to quiet the title to a small strip of land alleged by him to be2.1 feet wide on the south end, and 1.83 feet on the north end, and 47.93 feet in length north and south. Respondent alleges that he is the owner of the north 47.93 feet of lot 5, block 56, plat A, Salt Lake City survey, and the strip above mentioned is at the rear, or east, end of the part owned by him. Appellant alleges that she is the owner of the west G3x130 feet of lot 6, block and plat aforesaid. Lot 5 constitutes the northwest corner, and lot 6 the northeast corner, of said block. The east line of respondent's property and the west line of appellant's should be coincident, and the dispute in this case arises over the precise point at which the boundary line of said property is located. Respondent claims that the true boundary is east of said small strip, and that the strip belongs to him as part of lot 5, while the appellant claims the boundary to be west of said strip, and that the same belongs to her as part of lot 6. There is no dispute respecting the title of either party, except to the strip aforesaid. Such titles, however, are deraigned from different sources. In view of the fact that we shall treat this case as a disputed boundary, we need not refer to the pleadings, any further than to say that each party claimed title to the disputed strip and asked for affirmative relief. At the hearing the trial court found the issues in favor of re

spondent, and upon findings of fact and conclusions of law duly made entered a judgment and decree quieting the title to said strip in respondent, from which judgment and decree this appeal is prosecuted.

Appellant duly filed a motion for a new trial, and, the same being overruled, preserved all the evidence in a bill of exceptions, which evidence, in that form, is now before

us.

There is no substantial or material conflict in the evidence, and therefore the question here is one purely of law applicable to the uncontroverted facts and circumstances, as they appear from the bill of exceptions. The undisputed facts may be briefly, yet comprehensively, stated as follows: Block 56 is one of the original blocks of Salt Lake City, with an area of 20x20 rods, and lot 5 aforesaid is bounded on the west by State street and on the north by Second South street, while lot 6 is bounded on the north by Second South street and on the east by Second East street. While it appears from the evidence that some improvements were made on both lots 5 and 6 prior to that time, patent was not issued thereto until June 1, 1872, when it was issued to Daniel H. Wells, as mayor of Salt Lake City, and he in September of that year conveyed by proper deed said lot 5 to one John L. Blythe, who thus appears to have become the original owner and the predecessor in title of that part of lot 5 now claimed by respondent. The heirs of said Blythe conveyed to respondent in April. 1897. The history of the title to lot 6 is practically the same as that of lot 5, except that the title, after patent, was vested in one Joseph Busby, from whose estate, by means of intermediate grantors, appellant deraigns her title to her part of lot 6, dating from the 1st day of April, 1898. The record is silent as to when the original survey of said block 56 was made, nor does it appear anywhere what, if any, original monuments existed, or where such are located if any exist. It does appear, however, that shortly after this action was commenced a survey was made by a civil engineer, in December, 1904. and a plat of that survey was introduced in evidence and is made a part of the bill of exceptions. From the testimony of the surveyor it appears that he located the corners of lot 5 from monuments found by him at the intersection of the streets mentioned above, and that these monuments were established in the streets in 1890 by the then city engineer. There is no direct evidence that these monuments corresponded with the original ones established, if any were established, when the original survey of the block was made. It does appear, however, that the monuments that governed the survey of 1904 were those established in 1890 by the city engineer, and were doubtless assumed to be correct. It further appears, from the evidence of the surveyor who made the survey in 1904, that he found no monuments

or indications of any at the northeast corner of lot 5 and the northwest corner of lot 6, and that he established the boundary line between said lots as claimed by respondent merely as an arbitrary line, and arrived at the point where he located the same by dividing block 56 into two equal parts, so as to make the frontage of lot 5 on Second South street 165 feet, and giving lot 6 the same number of feet on that street. This was presumably based upon the fact that respondent's deed calls for 165 feet east from the northwest corner of said lot 5, and that appellant's deed calls for 66 feet commencing at the northwest corner of lot 6. Respondent proved by a witness, who is a son of John L. Blythe, the original owner of lot 5, that his father leased the northeast corner of lot 5 to one Ed. Gilman, and that said Gilman erected a house on the northeast corner thereof in the fall of 1871, and that said Gilman paid ground rent to his father during his lifetime, until about the year 1893, and thereafter to his father's estate. This witness further testified that, two or three years after 1871, one Cameron or one Hale erected a house on the northwest corner of lot 6, adjoining the house erected by Gilman; that these two houses were afterwards, from about the year 1880 until about the year 1895, used and occupied as one by cutting a door through the adjoining walls, and during that time were occupied in that way by one Dr. Gardner; that the house erected by Cameron or Hale, on what is now appellant's property, was still standing at the time of the trial. It appears from other testimony that the house erected by Gilman on respondent's property was torn down and removed a short time before the trial.

Appellant produced a Mrs. Carman as a witness, who is a daughter of the original owner of that part of lot 6 claimed by appellant. Mrs. Carman testified that she was born on the property owned by her father that is part of lot 6; that she had lived there all her life, with the exception of about seven years, from 1877 to about 1884, and that she was living there at the time of the trial; that she remembers the building that was erected on the northwest corner of lot 6; that it remained in the same position it was in at the time of the trial for more than 20 years last past; that a fence was erected, starting from the southwest corner of said building, extending south to the rear end of her father's property; that her father always claimed all that part of lot 6 lying east of said fence and up to the fence; that he collected ground rent for the land upon which the building stood during all of his life, and his estate did the same after his death; that the aforesaid fence was erected more than 30 years prior to the time of the trial, and was in the same place all the time, Mr. Romney, who purchased the property claimed by appellant from the administrator

of the estate of the original owner and succeeded to the title thereto in 1896, and who sold it to appellant in 1898, testified that he was acquainted with the building and fence erected and standing along the west side of lot 6; that both were in the same place all of the time from 1896 to the time of the trial; that he claimed up to the fence, and treated the fence and the west side of the building as the boundary between lots 5 and 6. Mr. Halloran, who is the agent of appellant, and as such had charge of the property for her, testified that he knew the location of the building and fence for the past seven years prior to the trial, and that the same were in the position then as when he first saw them; that the appellant always claimed up to the fence, and claimed the fence and the west side of the building as the west boundary line of her property. It further appears from the testimony that the fence and the west side of the building are in a direct line north and south, but that the direction of the fence and house line vary a little from the line as established by the surveyor in 1904. It further appears from the testimony that the line as marked by the fence and the west side of the building is 1.85 feet west of the line as surveyed by the surveyor at the north end, and 2.1 feet at the south end, thus leaving a strip of 1.85 feet at one end and 2.1 feet at the other end by 47.93 feet in length between the two lines, and this is the strip in controversy. It is further shown by the testimony of a daughter of the original owner of lot 5 that she lived on said lot in 1872 or 1873, and continued to live there until 1877; that she is now 46 years of age; that the building on lot 5 occupied by Dr. Gardner was erected about 32 years prior to the time of the trial, and that the one on lot 6 was erected over 25 years prior to the time of the trial; that her father always collected ground rent for that part upon which the first building stood during his lifetime. The executor of John L. Blythe testified that Dr. Gardner paid him as such executor, $8 a month as ground rent for the northeast corner of lot 5.

We remark here that there is nothing in the evidence showing that there ever was or was not a survey made establishing the east boundary of lot 5 and the west boundary of lot 6; nor is there anything to show how the building and fence came to be erected in the position they occupy; nor is there anything to show that there ever was any dispute between the owners of the property concerning the boundary line 'between said lots, or that any question was ever raised as to its location until such was done by respondent shortly before the bringing of this action. The evidence, however, does show that parts of both lots 5 and 6 were occupied continuously since 1872, and for some time prior thereto, and that the original owners lived thereon for many years, and thus knew or must have known of the fence and the claims of the respective owners, from what appeared upon

the ground at least. The foregoing facts being undisputed, and substantially covering the case as made, nothing remains except to apply the law thereto, and from the law determine who is the legal owner of the strip of land in dispute. As before stated, we shall treat this case as a disputed boundary line case merely, since by the stipulation of the parties and from the evidence no other issue is presented. In view of the uncontroverted facts, the question is, where is the boundary line between lots 5 and 6? Is it where the same was located by the surveyor in December, 1904, or is it where the fence was erected along the west side of the building erected on lot 6?

Counsel for respondent contends that this is a case where a boundary line was established, if established at all, by mistake, or by a misconception of the true line, and therefore the parties on either side of the line are, under the law, permitted to claim up to the true line whenever it is discovered. They further contend that there is nothing in this record upon which the doctrine of estoppel can be based, that the true boundary line was not established until shortly before the action was brought, that the same is at the point fixed by the survey of 1904, and that there never was an agreement between the adjoining owners fixing or agreeing upon a boundary line, and therefore respondent should prevail in this court, as he prevailed in the court below. Counsel further urges that, the trial court having found the facts in favor of respondent, this court, in view of the case of Promontory Ranch Co. v. Argile, 28 Utah, 398, 79 Pac. 47, and other cases, will not disturb a finding, unless clearly against the evidence and contrary to justice and right. If the findings and conclusions of the lower court were based upon conflicting evidence in any respect, we would have no hesitancy in agreeing with counsel's contention. But, in view that this record presents a question of law merely to be applied to uncontroverted facts, we cannot, even if we desired so to do, avoid the responsibility of applying the law, as we find it to be, to the facts as they exist. Counsel for appellant contend that in view of the undisputed facts in this case the law implies an agreement by the respective owners of the adjoining lots by which they established the boundary line to be the point where the fence and west side of the building on lot 6 were located.

The authorities upon the subject of disputed boundaries are, as might well be expected, not in harmony. Reasonably well defined principles, however, are established respecting the subject, and it is in the application of these principles to the particular case, rather than in any disagreement respecting the law, that the authorities differ. the oral argument the writer, at least, was much impressed with the views contended for by counsel for respondent, and by the

law as contended for by him; but upon a thorough reading of all the evidence, and a careful examination of all the authorities cited, as well as others, and upon mature reflection, he has been compelled to yield his first impressions, and we are all convinced that the law in this case is with the appellant upon the uncontroverted facts. We cannot, within the limits of this opinion, refer to more than a few of the many cases upon the subject. The lower court found that there never was any agreement between the owners of lots 5 and 6 respecting the boundary line in question, and in view of this fact permitted the respondent to recover.

Is such an agreement necessary in cases of this kind? Upon this point Selden, J., in the case of Baldwin v. Brown, 16 N. Y., at page 363, says: "The supposition of such an agreement [referring to an agreement establishing a boundary line] in cases of long acquiescence in an established line is, as I apprehend, entirely superfluous. The acquiescence in such cases affords ground, not merely for an inference of fact to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the par

ty is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a suflicient length of time to become thus conclusive, it is of no importance. The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles, and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for 20 years. In all cases in which practical locations have been confirmed upon evi. dence of this kind, the acquiescence has continued for a long period, rarely less than 20 years." (Italics ours.) The foregoing case is even weaker in its facts than is the case at bar. In that case the contending parties claimed title from a common source, and by mistake located a division fence at a point not the true line, yet it was held that long acquiescence, in that case more than 40 years, concluded the parties from questioning the boundary line. Cases are there cited where the period of acquiescence was for a much shorter time than is the time in the case at bar. Moreover it is expressly held in that case that the decision is not based upon adverse possession, but upon acquiescence alone. The case of Reed v. Farr, 35 N. Y. 113, is much like the foregoing in its facts, and cites and approves that case. The case of Beardsley v. Crane (Minn.) 54 N. W. 740, was a case of ejectment, and involved the question, in some respects, now under consideration. Collins, J., speaking for the Supreme Court of Minnesota, at page 742 of 54 N. W., right-hand column, says: "There should be an express agreement made between the owners of the lands, deliberately settling the exact, pre

cise line between them, and acquiescence for a considerable time, or, in the absence of proof of such agreement, it should be as clearly and distinctly shown that the party claiming has had possession of the premises claimed up to a certain, visible, and wellknown line, with the knowledge of the owner of the adjoining land, and his acquiescence, continued for a considerable period of time. What this period is has not been limited or defined, is quite vague and uncertain, and must necessarily depend upon the particular circumstances of each case."

The foregoing cases were cited by counsel for respondent upon the proposition that a mere passive assent and acquiescence is insufficient; that there must be more than that; that it must be or amount to an act or acts showing an actual acquiescence in the line as claimed. There is, however, nothing in those cases from which the law as claimed by counsel can be deduced, except now and then a loose expression may be found to that effect, and in view of all the authorities, when examined for the purpose of ascertaining what is actually decided, and the principles upon which the decisions rest, the contention of counsel is not supported to the full extent claimed by him.

It is squarely held, however, that long ac

quiescence in a boundary that is visibly marked, or placed where it can be and is observed by the adjoining owner, is sufficient to establish a boundary from which neither party may depart at will.

The case of McNamara v. Seaton, 82 Ill. 498, is clearly distinguishable from the case at bar. In that case two brothers, owning adjoining farms, agreed upon a wrong boundary by mistake, but discovered their error within four years thereafter, and thenceforth disregarded such line, and each claimed to the true boundary. The grantee of one of the brothers afterwards sought to enforce the rule of agreed boundary, but his claim was disallowed by the court. The case of Manistee Mfg. Co. v. Cogswell (Mich.) 61 N. W. 884, did not present the question of a boundary by acquiescence. In that case the error was discovered after five years, and no consent or acquiescence is shown. Palmer v. Osborne (Iowa) 87 N. W. 712, is a boundary line case; but, owing to the fact that the claimed boundary was on land overgrown with brush and not visible, and the owner against whom the boundary was claimed being a nonresident of the state, and having no knowledge except that which the law presumes in respect to ownership, the court held that the principle of established boundary by long acquiescence had no application. The court, however, in that case recognized the principle. The case of Peters v. Reichenbach (Wis.) 90 N. W. 184, is a case of ejectment for a small strip of ground between adjoining farmers. The case is certainly an authority for respondent, so far as the language of the court is concerned; but, even in that case, the doctrine we contend

for is recognized, but seems not to have been followed. It is the only case, however, that goes to the extent of disregarding boundary lines, except such as are expressly agreed to or established by the parties owning the land. If that case were strictly followed, there would be no security except in absolutely correct boundary lines or in those that were made so by an absolute agreement. Schraeder M. & M. Co. v. Packer, 129 U. S. 688, 9 Sup. Ct. 385, 32 L. Ed. 760, is a case of a mistaken boundary in respect to uncultivated timber lands. It was held in that case that a party consenting that his agent might mark the boundary line, which was after wards discovered to be wrong, did not constitute an estoppel and prevent the consenting party claiming to the true boundary when discovered. Long acquiescence is not considered in the case. Schad v. Sharp (Mo. Sup.) 8 S. W. 549, is another case where both parties claimed from a common grantor, and a fence was erected where it was supposed the boundary was which proved to be a mistake. The court simply held that no estoppel arose from that fact. Long acquiescence was not considered. Hall v. Eaton (Mass.) 29 N. E. 660, involved the construction of a deed, and the court held that under the facts in the case the question of a practical location of a boundary was not permissible in view of the facts. Brown v. Bowerman (Mich.) 97 N. W. 352, was a case of ejectment, and was reversed upon the ground that the court did not submit to the jury the question as to whether the boundary line had been established by the parties. McMaster v. Morse, 18 Utah, 21, 55 Pac. 70, presents nothing favorable to respondent. That case was reversed because the court refused to allow the jury to pass upon evidence respecting the boundary line in question.

We have thus briefly reviewed all the cases cited by counsel for respondent, and we will now proceed to examine a few other cases upon this subject. There are numerous authorities which hold that, in cases where the facts and circumstances were practically as they appear from the record in this case, a boundary between owners of lands, if marked by a fence or other visible monument, and acquiesced in by the owners for a long period of years, constitutes the true boundary, and that courts will not permit such boundaries to be disturbed. In Diehl v. Zanger, 39 Mich. 601, Judge Cooley, in passing upon this question, in the concluding paragraph of the opinion, at page 606, says: "But another view should have been equally conclusive in this case. The long practical acquiescence of the parties concerned in supposed boundary lines should be regarded as such an agreement upon them as to be conclusive, even if originally located erroneously." In Husted v. Willoughby, 75 N. W. 279, the same court held that, where a boundary line was located by mistake by one party and acquiesced in for more than 15 years, such boundary will not be disturbed. In a recent case in

New York (Katz v. Kaiser, 48 N. E. 532) the case of Baldwin v. Brown, supra, is approved and followed. The following cases are all to the same effect: Palmer v. Dosch (Ind. Sup.) 47 N. E. 176; Holloran v. Holloran (Mass.) 21 N. E. 374. In the case of Miller v. Mills County, 82 N. W. 1038, the Supreme Court of Iowa makes a thorough review of the authorities and holds that long acquiescence in a visibly marked boundary line between owners becomes conclusive. The same court, in a later case, entitled Kulas v. McHugh, 86 N. W. 238, in the syllabus, states the rule as follows: "Where a division fence between adjoining owners has stood for over 10 years, each party claiming to own up to it, an agreement to make it the true boundary will be implied."

In the case at bar the improvements were made more than 30 years before the trial. These improvements, although of no great value, were erected in such a way that they were calculated to mark the boundary between lots 5 and 6. The owners of these lots collected ground rent for the ground upon which the improvements stood, each for his own ground, during all of the time the original owners lived, and their representatives continued to do, the same, and as they were succeeded by other owners the same practice was continued until respondent made his claim, more than 30 years after the first improvements were made. In addition to this a fence was erected which so nearly approximated the true division line between the land that no one could have done otherwise than assume that this fence was intended as the true boundary. The evidence shows that the children of both the original owners lived upon the properties when quite small, thus leaving the inference that the families of the owners lived there for many years at least, and thus not only acquiesced in, but must have recognized, the fence as the boundary. Certainly it was open and visible to all for all those years, and no one seems to have raised any question respecting the boundary, or that the fence did not constitute the true division line, until the respondent did so.

Counsel for respondent, however, contend that the improvements and fence were erected by tenants, and that the owners are not to be bound by the acts of such tenants. Grant this, and there remains the fact that the owners and their successors and grantees by implication of law adopted the acts of these tenants by acquiescing therein for more than 30 years. The record does not show who constructed the fence, nor who requested it to be built, except by mere inference. But it does appear that the owners and their successors in interest must have seen and known of its existence during all of the time it was there. Neither can it be inferred, as counsel suggests, that the fence was erected merely for convenience, and not with a view of establishing a boundary, for the reason that the fence so nearly approximates the line