Appeal from the Circuit Court of Christian County; the Hon.
Daniel H. Dailey, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
This case arose out of a boundary dispute which resulted in an action for ejection. In dispute is the boundary running north and south between the east line of the tract owned by the plaintiff, Edwina Martin, and the west line of the tract owned by defendant, My Farm, Inc. (hereinafter My Farm). Defendants Carl and Dianne Spengler are purchasing the tract owned by My Farm under a contract for deed.
Plaintiff sought possession of the strip of land in question and damages. In defense My Farm asserted the existence of a boundary line established and undisputed for 40 years. The Spenglers asserted both adverse possession and the existence of a recognized boundary line in place on the premises for a period in excess of 20 years. The Spenglers counterclaimed, seeking dismissal of plaintiff's complaint at the cost of plaintiff and entry of an order establishing the boundary line as recited in the countercomplaint. In a bench trial the trial court found that the adverse possession of the defendants had commenced in 1966 and that the defenses and counterclaim had failed. The court found plaintiff entitled to possession of the disputed strip but not to damages and, accordingly, awarded possession to plaintiff. All defendants have appealed raising several issues, and the plaintiff has cross-appealed on the issue of damages. In view of the disposition we make in this case we set forth only those facts relevant to the issue of adverse possession.
At one time plaintiff owned both tracts, having inherited them as one property in 1909 at the age of two from her father. In 1925 or 1926 her guardianship ended with her marriage. In 1934 she conveyed a tract on the east part of her property to her mother, Beulah Turner. The description in the deed was "19 acres off of the East side of the West half of the Southeast quarter of Section 32, * * *." In 1966 Pasquo Podeschi, president of My Farm, bought the east tract at auction. In 1977 the Spenglers bought the east tract from My Farm under a contract for deed.
The property had been used as farmland apparently since at least 1909 and has been farmed by tenants almost all of that time. The tenants — often a common tenant for both tracts — farmed up to a fence running north and south, paying rents to the owner of each of the two tracts according to the location of the fence. Thus, the owner of the east tract received rents based upon the crops raised to the east of the fence, and the owner of the west tract, that is, plaintiff, received rents based upon the crops raised to the west of the fence. At one time the fence extended approximately half a mile, from the north boundary to the south boundary of the plaintiff's original property. At the time of trial only about 40 yards of the fence remained, the rest having been removed. The section of the fence that remains extends north from the south boundary of the property. Between the northernmost part of the fence and the north boundary of the property a crop or tillage line appears. In 1980 at plaintiff's request the east line of the west tract was surveyed. The survey placed the east side of plaintiff's tract approximately 80 to 90 feet east of the fence. Plaintiff thereupon brought suit in ejectment to recover possession of the 80 to 90 foot strip. The plaintiff also sought damages for rent for the disputed strip from the date of the survey to the time of trial.
Plaintiff testified that she and her mother usually had a common tenant who farmed both tracts. She said that Dillon Pyle, who had died in 1966, had farmed the land for her commencing in the thirties. At no time had plaintiff lived on either of the two tracts. She said that she and her tenants had never discussed the location of her property lines, that she did not know how the property lines had been set, and that she and her mother had never had an agreement as to where the property lines would be. She stated that she had never had any dispute with Pasquo Podeschi or Carl Spengler with regard to the boundary line. The crop line, she said, had remained the same from 1926 to 1980. She indicated that the fence line had been there as long as she could remember. She stated that the purpose of the fence was to keep in hogs and that the fence had no other purpose. Asked upon redirect examination to explain what she had meant by her earlier use of the term "boundary line," she answered, "Well, I assume that division between the two places." Upon recross by the attorney for the Spenglers the following colloquy took place:
"Q: And you said in response to [plaintiff's attorney's] question as to what you meant by boundary line that you meant that to be, you assumed the division between the two places.
A: I guess; yes, I did assume.
Q: And that, that division that you're talking about is the fence that's depicted in Plaintiff's Exhibit 2, is that right?
Plaintiff indicated that she had received a "notification" from "the Assessors [sic] Office that I was not reporting the right number of crop acres. Therefore, I assumed it was my duty to get it surveyed and get the right boundary line."
Testifying for plaintiff, Dave Hohn, the farm manager at the bank which had managed plaintiff's farm at least since 1968, said that plaintiff had been receiving income from the acreage up to the fence. He stated that a tenant "would know what the accepted division line was."
Testifying for the defendants was Howard Pyle, son of Dillon Pyle, both of whom had farmed the two tracts. At the time of trial in 1981 Howard Pyle was 45 years old. He testified that at the age of two, that is, in 1938, he had begun to reside on the west tract, that by the time he was nine or 10 years old he was helping his father with the field work, and that by the age of 15 he was doing all the planting. He lived on the west tract until 1968. In the early fifties he and his father began to farm both tracts, and the witness continued to do so until Pasquo Podeschi purchased the east tract in 1966. The witness farmed the west tract until 1968. He said that in approximately 1951 there was a fence extending "all the way from the south end to the north end except for two gaps," which together amounted to a total of about 140 feet. He stated that the fence was absolutely necessary in order to conduct the "hog operation." He classified the fence as a "division fence." He and his father apparently removed part of the fence leaving two posts in the middle so that they would have "something to go by." They also left a post on the fence line at the north boundary of the property. The witness called this post the "corner post" and described it as "a little bigger than the other posts," saying that "we left it so it would be the corner of the property line that we knew." At the time of trial, of these posts only the "corner post" remained. The witness testified that he had farmed as close to the fence as possible, stating that he had farmed the property on the east side of the fence for Ralph Turner, Beulah Turner's husband, and that he had farmed the property on the west side of the fence for Martin. He said that "the money from the grain sales and everything on the east side went to Turner" and "the money from everything on the other side went to Martin." No one, he said, had ever told him where the boundary line was. He had merely assumed that the fence, which he described as "straight," was the boundary line.
Pasquo Podeschi testified that he was aware of the fence in 1937 and in 1938 when he went to speak to Dillon Pyle about doing some work for him. He stated that Dillon Pyle first farmed plaintiff's property and later farmed both tracts. he said that when he farmed the area where there was no longer any fence, he "sighted" to the post earlier described as the corner post. He described the division line where there is no longer any fence as a little grassy ridge. He said ...