dissenting: I respectfully set forth my reasons for dissent since I am convinced the court’s opinion will cloud the title to both adjoining tracts of land.
This controversy arose between two adjoining property owners over title to a portion of a roadway abandoned or closed in the year 1948. The roadway had been used by the public from 1926 to 1948 and separated the adjoining properties.
The trial court heard the testimony of thirteen witnesses and examined many exhibits, including two abstracts of title. At the close of the trial it found generally in favor of plaintiff and entered a decree quieting plaintiff’s title to the property described in plaintiff’s deed. The description of property in the plaintiff’s deed included that portion of the roadway in controversy.
In the majority opinion this court has reversed the judgment for plaintiff and entered judgment quieting Irene Werth’s title to the roadway. The reproduction of the record presented to this court *553was so confusing the original transcript of the proceedings was requested. This court has reviewed the evidence in the transcript and substituted its judgment for that of the trial court.
A trial court’s findings and judgment based upon substantial competent evidence, though controverted, should not be disturbed upon review. (See Hatcher’s Kansas Digest, Appeal and Error § 507-8 for supporting cases.)
This court on appeal may not substitute its judgment for that of the trial court unless the issues are clear, no meritorious defense is shown and such judgment is supported by uncontroverted evidence. (Byer v. Byer, 180 Kan. 258, 303 P. 2d 137.)
Additional facts should be noted.
Henry E. Winters owned a quarter section of land near Hays, Kansas. In the year 1926 Ellis County secured oral permission to round off the northwest corner of the quarter for a roadway. The roadway was graded and, when completed, it separated a triangular tract in the northwest corner from the balance of the quarter.
This triangular tract lying north of the curved roadway was deeded to Ellis County in 1932. This was six years after the roadway was first laid out, graded and used by the public.
As shown by the plat (p. 535) there is a strip of land thirty-three feet wide on the north and forty feet wide on the west side of the quarter being used for city streets. (The City of Hays has since grown and encompassed this area in question.) When the curved road was laid out around the corner a tenant of Mr. Winters fenced that portion of the quarter lying south of the curved road to keep his cattle off the highways. His fences were set on the right-of-way lines, not on the section lines. Therefore his fence was forty feet in from the west line of the section, thirty-three feet in from the north line of the section and followed the curved roadway around the corner of the quarter of land.
In 1932 Mr. Winters executed and delivered a deed to Ellis County which described the triangular tract as set forth in the majority opinion. This tract by mesne conveyance was acquired by Irene Werth in 1937. The descriptions in all of the deeds were the same. At the time Werth acquired the tract the curved roadway was being maintained by the county and used by the public. This continued from 1926 to 1948, a period of twenty-two years. The road had never been formally dedicated to public use. The road was closed and abandoned in 1948 without the formality of statutory proceedings but with the tacit approval of the county.
*554The fencing around the Winters land was maintained for sometime thereafter but gradually fell into disrepair and finally disappeared. It is not a visible boundary between the two tracts at the present time.
The Winters’ land was sold to a read estate broker who caused it to be surveyed and platted into lots and blocks as Centennial Estates Fourth Addition to the City of Hays, Kansas. The plaintiff church purchased one of the lots and the agreed metes and bounds description of this lot includes a portion of the curved roadway abandoned in 1948 and now in controversy.
The church filed a petition to quiet title to its lot which is described by metes and bounds on page 536 of the majority opinion.
Irene Werth filed an answer and counterclaim for the purpose of quieting her title to the following described tract:
“Beginning at the northwest corner of Section Thirty-four (34), Township Thirteen (13) South, Range Eighteen (18) West of the 6th P. M., thence east 426' along the section line between Sections Twenty-seven (27) and Thirty-four (34), Township Thirteen (13) South, Range Eighteen (18) West; thence southwesterly along a curve which is represented by a partitioned fence, constructed by the common grantor of plaintiffs and defendants, Henry E. Winters, to intersect the second line between Sections Thirty-three (33) and Thirty-four (34) in Township Thirteen (13) South, Range Eighteen (18) West, 426' south of the northwest corner of said Section Thirty-four (34) thence north 426' along the line between said Sections Thirty-three (33) and Thirty-four (34) in Township Thirteen (13) South, Range Eighteen (18) West of the 6th P. M. to the place of beginning; . . (Our emphasis.)
It is apparent this metes and bounds description is indefinite and ambiguous. The description does not fully encompass an area. The beginning point as shown on the plat in the majority opinion is “A.” The boundary line proceeds east along the north section line a distance of 426 feet to point “B” on the plat. Point “B” is thirty-three feet (half the width of the street) from the closest point of the “partitioned fence.” The description assumes point “B” is located at a point on this fence line. As previously stated the fence disappeared several years back and there are no present points of reference to set its present location. This fence has never been used as a boundary in any legal description set forth in a deed of conveyance. The fence line was not set on a true arc with a set radius. The abandoned roadway, according to the testimony and the plat varied in width from twenty to thirty feet. It should be noted further that this fence line was never closer to the west line *555of the section than forty feet (half the width of the present street). The defendants’ description erroneously assumes the fence line on the west touches the section line and from such point of reference the boundary line is to follow the section line 426 feet north to the place of beginning.
The metes and bounds description employed by the defendants and upon which this court quiets title for the defendants is indefinite, ambiguous and will confuse future legal titles to all adjoining tracts of land including the right-of-way condemned in 1952 by the State of Kansas along the west side of this section. (Case No. 11,977, District Court of Ellis County, Kansas.)
Tiffany Real Property (Third Edition) Vol. 4 § 990 states:
“In order to make a valid conveyance of land, it is essential that tihe land itself, the subject of the conveyance, be capable of identification, and, if the conveyance does not describe the land with such particularity as to render this possible, the conveyance is absolutely nugatory, . . .”
In McBride v. Steinweden, 72 Kan. 508, 514, 83 Pac. 822, a description of land was held to be so vague and uncertain as to be meaningless and void.
However, the description of land in the Werth deed merely appears uncertain and ambiguous and within the rational of Hale v. Ziegler, 180 Kan. 249, 303 P. 2d 190, and In re Estate of Crawford, 176 Kan. 537, 271 P. 2d 240 it would afford a means of identification by the use of extrinsic evidence. As determined by the trial court the arc of the radius bowed toward the northwest comer of the section and the land conveyed by the county was that identified on the plat by points A, B, X, D.
In Hale v. Ziegler, supra, it is said:
“Where the language used in an instrument creating and granting an easement may be criticized as vague and uncertain as to the exact land affected, but at the time of its creation particular lands are devoted thereto and used for a period of over forty years thereafter, it will not be held that such grant is void.” (Syl. 4.)
I believe the particular lands devoted to the use of the grantee after the Werth deed was delivered in 1937 was a proper factor to be considered by the trial court. It is not reasonable that the county would intend to include the roadway in the area conveyed and then continue to maintain the road for use by the public for over eleven years.
The Werths in their counterclaim, seeking to quiet title, alleged:
*556“[T]hat defendants Irene Werth and Peter A. Werth, her husband and their predecessors in title have been in the open, notorious, adverse, peaceable, and continuous possession thereof of the said real estate described in paragraph No. 6 thereof for more than thirty-seven (37) years last past, claiming title and ownership thereto exclusively against all persons, firms and corporations whomsoever.”
They stipulated prior to trial as follows:
“9. It is stipulated that defendant Werth is not claiming the land in question by virtue of deed or other conveyance but by virtue of the claim of adverse possession.”
Their counterclaim was presented on the issue of adverse possession. The trial court made findings of fact and conclusions of law on this issue as follows:
“. . . [T]he defendant Werth claimed title only under the description in • his deed from Oscar Geyer, dated April 10, 1937, as shown by the abstract.
“P. A. Werth testified that he apparently assumed that the description in his deed carried to the fence line south of the old roadway. From the evidence in the description contained in defendant Werth’s deed to the Werth land, it contains an ambiguity in one respect. From the description it cannot be determined whether the curve which forms one of the boundary lines, bends toward the northwest of the quarter section or in the opposite direction. The direction of the bend cannot be determined from the two fixed terminal points as shown by the description. All other necessary points in the description are clear, and evidence is clear from all parties and undisputed by no one that the bend of the curve bends towards the northwest corner of the section.
“So, with that from the evidence the description contained in the deed is definite in every respect and any qualified engineer, knowing the direction of the bend of that curve, can determine the exact location of the boundary line of both the Werth property and the property described in the deed held by the plaintiff trustees.
“The court finds that the defendant Werth acquired no land by adverse possession. . . .”
The present action was commenced in May 1964. Our statute relating to adverse possession (K. S. A. 60-503) does not apply. Under the provisions of the prior statute (G. S. 1949, 60-304 [Fourth]) this court has held adverse possession must be actual, visible, exclusive and continuous for fifteen years (Shaw v. Bandel, 122 Kan. 343, 346, 251 Pac. 1086) and possession is not adverse when there is a mistake as to a boundary line (Wilson v. Pum Ze, 167 Kan. 31, 204 P. 2d 723).
Adverse possession is a question of fact to be presented to and determined by the trier of facts. When the determination is so made, if based upon substantial competent evidence, it should be affirmed on appeal. (Unruh v. Whorton, 194 Kan. 32, 397 P. 2d 84.)
*557The majority opinion avoids the application of the foregoing rules by holding the stipulation was an admission of law and the defendants are not bound by the stipulation.
The stipulation of defendants as to the issue of adverse possession is not an admission of law, it relates to conduct of the trial and should limit and govern both counsel and the court.
K. S. A. 60-216 authorizes pre-trial procedure limiting the issues for trial. This court has held a limitation on issues when agreed to in a pre-trial order should control the subsequent course of the action unless the order is modified to prevent manifest injustice. (Brown v. Hardin, 197 Kan. 517, 519, 419 P. 2d 912.)
The case cited by the majority, The People v. P., Ft. W. & C. Ry. Co., 244 Ill. 166, 91 N. E. 48, relates to an admission of the legal effect of a city ordinance. There the admission was set forth in the defendant’s answer. Defendant alleged the ordinance required a reverter of fee title to an abutting property owner when a street was vacated. The admission clearly related to a matter of law. The pleader could not bind the court by his own erroneous construction of the effect of the city ordinance. That case has no application to the stipulation of issues in the present case.
The majority of the court view the evidence introduced by plaintiff in answer to the counterclaim as an attempt to reform defendants’ deed. I view it as an attempt to show why defendants’ title based upon such deed did not include the area of the disputed roadway.
Plaintiff asked for a decree quieting his own title to the area of land described in his deed. It is admitted the legal descriptions in plaintiff’s complete chain of title included the area in dispute, the curved roadway. The evidence in support of plaintiff’s chain of title included deeds from the common grantor, Winters, and H. Schwaller and Sons, Inc. Abstracts of title were received in evidence covering both the Werth property (Jt. Ex. 5) and the plaintiff’s property (Jt. Ex. 6).
This evidence clearly established, and all parties agreed, the discrepancy was in the description of land contained in the Werth deed, not in the church deed.
If reformation of any deed was sought in the court below it related to the Werth deed and failure to obtain reformation of that deed would not affect plaintiff’s rights. The statute of limitations as to reformation applies to both parties and neither should be granted rights of reformation on appeal.
*558As I understand the majority opinion the process by which defendants’ title to the abandoned roadway is quieted follows this chain of reasoning. The description of land in the defendants’ deed encompassed all land within a convex arc with a radius of 426 feet from a radiant point on the northwest comer of the section. This would include all land claimed by Werth, plus most of the land claimed by the church and plus two tracts lying east and south of the church property. (See area in plat bounded by points A, B, Y, D.) Such a construction of the description in the Werth deed was never urged on the trial court or on this court. This construction of the description is arrived at by placing emphasis on the word intersect and by using, what is termed, a fundamental rule of geometry. In the application of such a rule this court overlooks that the legal description does not locate an established radiant point, it does not say the section line is tangent to the arc made by the radius and it does not establish a 90° angle at the northwest corner of the section.
Clearly a conveyance of this area circumscribed by points A, B, Y, D on the plat was never intended by Mr. Winters, the grantor, or by Ellis County, the grantee, when the deed was executed. At that time (1932) the curved road was being maintained by the county and was being used by the public. The fence which enclosed the Winters land was not moved. The tenant continued to farm up to the fence line which included more than half of the area circumscribed by points A, B, Y, D. All subsequent owners of the land, two different engineers who made surveys and the trial judge considered this description to include the area on the plat bounded by points A, B, X, D and lying outside of the Winters fence.
The second step in the process used by the court to quiet defendants’ title to the abandoned roadway is to take from the defendants all the additional area granted to them by the construction of the description in the deed except the abandoned roadway. The legal basis by which this is accomplished is not entirely clear since the plaintiff made no claim of adverse possession or of boundary by agreement.
In the opinion it is stated the testimony of P. A. Werth constitutes an admission against interest which is binding upon the defendants.
The court then says, “The testimony of Mr. Struble suggests an agreement (emphasis added) between Henry E. Winters and Ellis *559County to fix the boundary . . . along the fence line laid out by the county engineer of Ellis County and constructed by Mr. Struble, the tenant of Mr. Winters.”
However, the line referred to was laid out and the fence was constructed in 1926. The deed by which the county received title to the triangular tract was executed and delivered six years later in 1932. In 1926 there was no provision in our law for an oral conveyance of land. (See R. S. 1923, 67-205.) Therefore, this fence line was established when Henry E. Winters owned the land on both sides of the curved roadway.
The law in Kansas as set forth in Wagner v. Thompson, 163 Kan. 662, 186 P. 2d 278, and In re Moore, 173 Kan. 820, 252 P. 2d 875, indicates a fence line does not become a true boundary in the absence of an express agreement by the adjoining landowners.
In the present case both tracts were owned by one person at the time the fence was. installed and there was no evidence in the record to establish an express agreement by adjoining landowners for a true boundary.
The court should not substitute its judgment for that of the trial court. A decree should not be entered quieting title when the legal description of the real estate affected thereby is indefinite and ambiguous, for such a decree will result in confusion and further litigation. I would affirm the judgment of the trial court.
Fatzer, J., joins in the foregoing dissent.