This action arises out of a dispute over a boundary line between two lots. Frank Thompson purchased a lot in a subdivision in 1919, and he and his wife thereafter conveyed the same to defendants in 1929. Plaintiff had purchased the adjoining lot in 1920. All of the foregoing parties have agreed on a certain line, as the boundary between the lots, and during approximately 12 years, plaintiff had held the property up to *Page 663 such line with the consent and without any objection or question on the part of these adjoining owners. After such period of agreement, defendants caused a survey to be made, which showed that plaintiff's house stands partially upon the land owned by defendants, as described by their deed. The defendants' predecessor in title and plaintiff had previously built a wall on what they supposed, and had agreed upon, to be the boundary line, but which in fact is located on defendants' property, according to the description in the deed.
Plaintiff filed this bill to restrain defendants from interfering with plaintiff's rights to take water from the well and also for the purpose of securing a decree confirming the line agreed upon by the parties as the boundary between the lots.
After Thompson, from whom defendants purchased their lot, built the cottage now owned by defendants, he and the plaintiff agreed on a line which they thought was the dividing line between the lots. Thereafter, in 1920, plaintiff Warner erected a cottage on what the parties supposed was his property, but which, in fact, projected onto the property of Thompson, for a distance of approximately seven feet on the north end and three feet on the south end of the cottage. Thereafter when defendants purchased from Thompson they believed that Warner owned the land upon which plaintiff's cottage was erected. In fact, defendants sought and obtained permission in 1929 or 1930 from plaintiff Warner to build a fireplace chimney which they thought would encroach on the land, the ownership of which all parties supposed to be in Warner; and acquiescence by all parties continued in the supposed lot line until 1932 when defendants caused the property to be surveyed. *Page 664
In 1933, defendant advised plaintiff and his wife that plaintiff's house was on defendants' property. In this conversation plaintiff told defendant that while defendant might be right in his belief, plaintiff did not agree. Defendant then advised plaintiff that he would do nothing about the matter as long as there was no change of ownership in the lots owned by plaintiff and defendants.
He further testified that, at the time, he requested plaintiff to move an out-house from the disputed strip and that plaintiff replied that he was going to move it anyway, which he afterward did. Plaintiff, however, denies that defendant ever asked him to move such building.
In the same year of 1933, defendant widened the pathway around his house on the disputed strip of land and and banked it with cobblestones. Previously, in 1932, defendant had dug a trench about seven feet wide on the disputed property in order to keep water from draining into his basement. Later, in 1935, defendant laid tile adjacent to the footings of the foundation and after filling in the excavation, caused the excess dirt to be thrown upon the disputed property. In 1936, defendant hired a landscape gardener and brought in approximately 20 loads of black earth which he spread over the disputed property and caused trees and shrubs to be planted.
During 1935 and 1936, plaintiff rented his property to defendant's brother-in-law, and claims that the first knowledge he had of any landscaping was in the fall of 1936 when defendant's brother-in-law brought him the keys after having leased the cottage for the season, and told him that defendant was landscaping the property. Plaintiff denies that defendant ever asked him to have the out-house moved from the disputed strip of land and further testified that since the time he purchased the lot and built the cottage he *Page 665 had claimed to own the land up to the line agreed upon between him and Thompson.
In May, 1937, plaintiff filed his bill of complaint for an injunction and for a decree requiring defendants to quitclaim and release to plaintiff any interest which they assert in the property and which the plaintiff claims he has held adversely for a period of more than 15 years, and he also claims title by acquiescence.
The circuit court entered a decree granting plaintiff the relief sought, and defendants appeal on the ground that the court erred in finding that plaintiff acquired title to the disputed property by acquiescence and adverse possession.
As a general rule, acquiescence in a line fixed by oral agreement need not be for the full statutory period required in cases of adverse possession; acquiescence for a reasonable period short of that time may be conclusive. 8 Am. Jur. p. 799.
In Smith v. Hamilton, 20 Mich. 433, 438 (4 Am. Rep. 398), the court said:
"It has been held very generally, that when there has been an honest difficulty in determining the lines between two neighboring proprietors, and they have actually agreed by parol upon a certain boundary as the true one, and have occupied accordingly with visible monuments or divisions, the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession. Where the transaction has not been such as to amount merely to an honest attempt to determine a doubtful line, the authorities have not permitted an agreement to stand which would operate as a violation of the statute of frauds. But where the parties have only tried to find the true boundary, it has been held that the statute was not infringed, and the line was fixed by acquiescence." *Page 666
"It has been frequently held in this State that where parties by mutual agreement, and for that express purpose, meet and fix a boundary line and thereafter acquiesce in the line so established between them, such line shall be considered the true line between them, notwithstanding the period of such acquiescence falls short of the time fixed by the statute of limitations for gaining title by adverse possession."Jones v. Pashby, 67 Mich. 459 (11 Am. St. Rep. 589).
The rule set forth in the above citations, however, is subject to qualification. If the owners be in doubt as to the true boundary line, neither assuming to know its location, and thereupon agree to fix a line as the boundary, notwithstanding they may have been mistaken as to the true line, such agreed line is to be given effect. If, however, the parties undertake by parol agreement to fix the boundary line under the belief that they are fixing the true boundary line, when in fact it is not, their agreement is not binding and may be set aside by either party on the discovery of the mistake, unless there is some element of estoppel which would prevent them from doing so. 8 Am. Jur. p. 800; Blank v. Ambs,260 Mich. 589; Bemis v. Bradley, 126 Me. 462 (139 A. 593, 69 A.L.R. 1399).
We are of opinion that plaintiff has not sustained the burden of proof showing title to this disputed strip of land by acquiescence through agreement with the adjoining owners as to the boundary. From the evidence, it appears that such boundary line may have been agreed upon by the parties, believing it to be the true line.
However, we agree that plaintiff has clearly estabblished title by adverse possession. Plaintiff built his cottage on the disputed strip in 1920 and his erection and occupancy of the building was the most *Page 667 open, notorious and hostile possession possible. ElkhornCoal Corp. v. Bradley, 216 Ky. 599 (288 S.W. 326).
Although there is a presumption that defendant entering land under color of title claims all of the land covered by his deed, such presumption is rebutted by proof that, although he is in actual possession of part of the land, he does not claim possession or ownership beyond a certain line. Haddock v. Leary, 148 N.C. 378 (62 S.E. 426).
The period of adverse possession, therefore, began with plaintiff's building of his cottage in 1920 on the disputed property, under claim of right growing out of the agreement as to the boundary line between plaintiff and defendants' predecessor in title.
While a holding of property up to an agreed line, which the parties mistakenly assumed was the true property line, does not ordinarily ripen into title by acquiescence, nevertheless a holding of such property for the statutory period, even though it be by a mutual mistaken assumption as to the true boundary line, does give title by adverse possession if the necessary legal requisites for such possession exist.
The great weight of authority is to the effect that an open, notorious and hostile possession of property for the statutory limitation period is sufficient for the acquisition of title by adverse possession, and the fact that the possession was taken under a mistake as to boundary lines is immaterial.Preble v. Railroad Co., 85 Me. 260 (27 A. 149, 21 L.R.A. 829, 35 Am. St. Rep. 366). Such rule is, however, predicated upon the intention of the party to claim adversely, as well as his possession for the statutory period. Possession beyond a boundary line under mistake as to the true line but with an intent to appropriate is adverse.Fredericksen v. Henke, 167 Minn. 356 (206 N.W. 257, 46 A.L.R. 785). *Page 668
It is not merely the existence of a mistake, but the presence or absence of the requisite intention to claim title that fixes the character of the entry and determines whether the possession is adverse. Edwards v. Fleming,83 Kan. 653 (112 P. 836, 33 L.R.A. [N. S.] 923).
Where a fence has been treated and acquiesced in as the correct boundary line between adjacent owners for 15 years, the boundary line ought not to be disturbed even if there were some variance from the true line. Bunde v. Finley,224 Mich. 634.
"The original survey may have been inaccurate, its lines may not correctly and accurately fix the boundary but if they have been acquiesced in for a sufficient length of time, they fix the 'true line' as matter of fact and as matter of law."Hanlon v. TenHove, 235 Mich. 227 (46 A.L.R. 788).
When adverse possession is once shown, it is generally presumed to continue, this being an application of the general presumption that a certain condition or state of a continuing nature, once shown to exist, will continue to exist.McDaniels v. Cutburth (Mo.), 270 S.W. 353; 2 C. J. S. p. 825.
Such adverse possession having once been established the burden of proof is upon defendant to show an act sufficient in law to break such adverse possession. A mere physical entry by the owner is not enough, and, in order to defeat another's adverse possession, the owner's entry must clearly indicate to the occupant that his possession is invalid and his right challenged. Such entry must be open and notorious and under a claim of right and must bear upon its face an unequivocal intention to take possession. Smith v. RailwayCo., 1 Cal. (2d) 272 (34 Pac. [2d] 713); Nelson v. Johnson, 189 Ky. 815 (226 S.W. 94); and the entry by an owner to break the *Page 669 period of adverse possession must be made under such circumstances that by the use of reasonable diligence, the occupant may ascertain the right and claim of the entrant. It must indicate to the occupant that possession is invaded and that the right to possession is challenged. Entries such as for purposes of cutting timber or mere trespasses with force are not enough to break the period of adverse possession.Bonebrake v. Flourney, 133 Okla. 101 (271 Pac. 658); Home Land Co. v. Nye, 93 Pa. Super. 452 . The entry must be equal in dignity and character to that required to initiate adverse possession. Smith v.Railway Co., supra. It cannot be merely accidental, casual, secret or permissive. Bonebrake v.Flourney, supra. Mere verbal protests or statements by the owner, which are short of disturbing or interrupting the exercise of the rights claimed by the adverse occupant, are ineffectual to stop the running of the statute of limitations. 2 C. J. S. p. 706. A mere denying or disputing by the owner of the right of adverse occupant, or making of verbal claims in himself will not interrupt the adverse possession. Cox v. Clough, 70 Cal. 345 (11 P. 732); IllinoisSteel Co. v. Kohnke, 151 Wis. 410 (138 N.W. 995).
Plaintiff commencing with a holding by adverse possession in 1920 for a period of more than 15 years is presumed to have claimed the land in controversy adversely for a period of more than 15 years.
Defendant's claim that he excavated in the disputed property for the purpose of draining his land and that he caused the excess earth to be thrown on the disputed strip is not, under the circumstances, such an assertion of right and an invasion of possession as will break the statutory period. Plaintiff had previously given defendant permission to build a chimney on the disputed strip and in a neighborly *Page 670 spirit had told him that the land was not valuable and that it would not be necessary for defendant to secure any written rights. It would have been surprising in view of this circumstance if plaintiff had objected to having earth thrown on the disputed strip as a result of defendants' attempt to avoid the flow of surface water into his basement. The spreading of the black earth on the disputed strip and the landscaping by defendant was not brought to plaintiff's attention, and accordingly could not be said to be any open assertion of right in the property. When defendant first mentioned to plaintiff that the line upon which the parties had previously agreed was erroneous, plaintiff disagreed in his contention, and defendant stated that he would do nothing about it as long as the lots did not change hands. This was insufficient to constitute such an invasion of possession or assertion of right as would break the running of the statutory period for adverse possession.
Because of defendants' failure to sustain the burden of proof to show that such period was broken by his entry upon the property, the decree of the trial court confirming plaintiff in the land so held by adverse possession and enjoining defendant from interference with plaintiff's rights in the well, should be affirmed, with costs to plaintiff.
BUTZEL, J., concurred with McALLISTER, J. *Page 671