In our former opinion we did not discuss at length the question involved pertaining to the east and west road. For more than 10 years the public have used a road running-east and west at or near the south line of plaintiffs property, the south half of the southeast quarter of section 2. It is contended by plaintiff that this road is not upon the section line, but that a part of it is wholly within his land; that at the southeast corner of his land the road is os the line, but that it bears off to the north, so that at the west si.de of plaintiff’s farm it is about four rods north of the line. Plaintiff concedes that the public is entitled to a road on the line. Consistent with his present contention, plaintiff set fence posts within the strip now used as a highway along what- he contends should be the south line thereof. He brings this action to restrain the defendant road overseer from removing the posts. A survey was made by the county surveyor, who gave testimony sup*618porting plaintiffs contention that the road now wed bears off from the section line to the north. The correctness o-f the method used by the surveyor is challenged, but, as we view the case, no occasion exists to discuss this question, and we adopt the survey as establishing the facts relied upon by plaintiff. The question is whether or not the strip of land actually used is a public highway. Tn other words, does the use thereof for 10 or more years by the public, under the mistaken belief that the road is upon, the section line, establish it as a highway?
Plaintiff cities Bolton v. McShane, 44 N. W. 211 (79 Ia. 26), wherein it was held: “No length of use by the public of a highway which is supposed to be upon a certain line, but which, by mistake, is not, can give any claim to the highway under the statute of limitations, except as to the true line.” The reason for this holding is expressed in the opinion of the court as follows: “It appears, beyond question, that the track traveled, and which is outside of appellant’s fence, has been used for public travel for more than twenty years. It is evident that all parties supposed the traveled road to be along the section line. This court has repeatedly held that, in case of mistake of landowners as to the division line in their lands, the possessor holding the lands as a part of his tract, and believing it to be within his boundaries, is not protected by statute. Grube v. Wells, 34 Ia. 148. In State v. Welpton, 34 Ia. 144, it was held that This rule is applicable to the case of the public using a way supposed to be on a certain line, but which, through mistake, is not really upon it. The claim of the public is confined to the true line. The use, in order to draw the benefit of the statute, must correspond with the claim of right.’” (79 Ia. 26.)
This court has reached a different conclusion in its adjudication of the analogous question which controlled the decision in Bolton v. McShane, supra. See Baty v. Elrod, 66 Neb. 735, and cases there cited. In the Baty case, this court expressly disapproved Grube v. Wells, 34 Ia. 148, relied upon to support Bolton v. McShane. Manrose v. *619Parker, 90 Ill. 581, seems to support plaintiff’s contention, but we find that Landers v. Town of Whitefield, 154 Ill. 630, holds that, under circumstances similar to those in the case before us, the landowner was barred by prescription from fencing in the strip actually used for a road. See, also, Axmear v. Richards, 112 Ia. 657; Meyer v. Town of Petersburg, 99 Minn. 450; Buch & Peiffer v. Flanders, 119 Ia. 164. It is a well-established rule of this court that, as between individuals, possession may he adverse, though.the claimant occupies under a mistaken belief that the true boundary is different than it really is. This rule is applicable to questions of disputed boundaries of public highways, and the defendant had the right to remove the fence posts which plaintiff placed in this highway.
We have also reexamined the case, with reference to the north and south road. It is contended that we were in error in stating in the former opinion “that at least as early as 1893 the land on the west side, except about 10 rods at the south end thereof, was improved by the owner, who plowed and cultivated up to the alleged highway.” The witness Smith, who owned the farm in 1893, testified: “Q. Commencing on the south line of section 2, at the road, east of that house, what cultivation was there east of the road when you Avent there? A. There Avere 20 acres cultivated there, lying on the east side of the road. Q. Then you owned the land both east and Avest of the road, up 80 rods? A. Eighty rods, yes, north. Q. How long, to your knowledge, Avas the strip of uncultivated land left between those tAvo forties, and used as a road? A. The land was cultivated Avhen I went there on each side of that road. Q. noAV long, to your knowledge, Avas the strip of uncultivated land left between those two forty acres, and used as a road? A. I don’t know. Of course as to that I know it was used before I came there. Q. How long do you know of it not being used? A. Being used as a road? Q. Yes, how long do you know of it? A. Ever since 1893. Q. For Avliat purpose did you leave that strip you have *620been talking of as a road uncultivated? A. From the fact of it being established from self-establishment, as I supposed, on account of being traveled and left there previous years. Q. For what purpose did you leave it? A. For the purpose of a road. Q. What improvements or fences were there along the road on the west side? A. It was broke up when I got there. Q> It was broken up west of the road when you got it? A. Yes, sir. Q. Noav, across what is known as the road, Avhat improvements, if any, were across that, on Avhat is knoAvn as the road? A. What do you have reference to? Q. I haim reference to Avhat is knoAvn as the road. A. There wasn’t any improvements across the road. There Avas land cultivated across each side. Q. In what was knoAvn as the road, it wasn’t cultivated? A. No, the road Avasn’t cultivated up. Q. How wide was the strip that was left uncultivated betAveen the strips east and west of it? A. Oh, probably a rod and a half or two rods. The plowing came up to the road on either side.” Other witnesses gave testimony of a similar import, and the record fully justifies the statement in the former opinion “that plaintiff’s grantors recognized said road as a public highway for more than ten years by cultivating the land on either side.”
We recommend that the,former opinion be adhered to.
Duffie and Good, 00., concur.By the Court: For the reasons stated in the foregoing opinion, the former opinion is adhered to.
Former judgment affirmed.