1 Reported in 273 N.W. 77. This was an action brought to determine the boundary between village properties, alleged to be contiguous, lying in block 67 of the replat of the village of Buffalo. The plaintiff prevailed in the court below, and the defendants come here upon an appeal from an order denying their motion for a new trial. *Page 555
Defendants make two principal contentions. First, they claim an estoppel in pais against the plaintiff in favor of a line run by an engineer named Jude which includes upon their own property the buildings which they have erected or moved thereon. Second, they contend that the true boundary is more favorable to them than that found by the court.
Plaintiff's holdings lie southerly from defendants'. Three lines were run by as many engineers or surveyors. The most northerly line was run by Nickerson, a line 10 to 13 feet southerly of that was run by Higgins, and about 10 feet further to the south is the line run by Jude, which defendants claim was established and pointed out to them in the transaction of purchase. The Higgins line, as we refer to it, is the line claimed to be correct by defendants in case it is found that they are not entitled to the Jude line under the doctrine of estoppel in pais. (There was another line run by Higgins only a foot or two distant from the Nickerson line. It is the Higgins line 10 to 13 feet distant from the Nickerson line which we designate herein as the Higgins line.)
The plat of block 67 by the original dedicators did not divide the land within that block into lots. Subsequently a lot A was platted within block 67 and ultimately came to the ownership of the plaintiff. North of this lot A and within the boundaries of block 67 lies the tract which the defendants purchased under contract from the plaintiff and his cotenants, Dr. Lowe and two others who were apparently nonresidents of the village of Buffalo.
For an indefinite period prior to May, 1934, the defendants had engaged in operating a roadside popcorn and lunch wagon, first in the street contiguous to lot A, then close to the plaintiff's garage upon said lot with the permission of the plaintiff's lessee. The popcorn wagon first stood upon wheels and later upon some sort of a block foundation. The defendants had constructed a small bunkhouse upon lot A near by. The plaintiff, prior to defendants' occupancy of this part of the lot, operated a garage on the southerly portion of it but had leased the garage and had removed to the city of Minneapolis, where he conducted a trucking business which *Page 556 frequently took him past this property in the village of Buffalo. Plaintiff's removal from Buffalo apparently left Dr. Lowe as the only one of the four cotenants of the property contracted to the defendants, who still resided in Buffalo. The sale under contract to the defendants originated in an offer made by them to Dr. Lowe to purchase the tract for $150. Upon Dr. Lowe's communication of this offer to his cotenants, he was intrusted with all the negotiations with the defendants, and these negotiations resulted in an agreement upon a price of $220 for the tract. Dr. Lowe testified that in consideration of the terms which he had made with the defendants he would furnish them a contract and see that the line now in dispute was established. The doctor testified that he got in touch with his associates, —
"and they give me to understand that I could go ahead and make whatever deal that I could with them [defendants], which I did. Then the contract was drawn up. And on or about that time they asked for an abstract and to locate the line for them. And I didn't know. I hadn't any abstract but I agreed to get one and find out where the line was. And I thought perhaps Mr. Liederbach would know and I tried to get him to come up sometime when it would be convenient and point it out to us if he could. I also told the Picketts that if he didn't come pretty soon, why, I'd try and get somebody to find it for us, and I asked Mr. Jude if it would be possible for him to run that line out for me. * * * So one day when I was going home his road crew, engineers, were there working on it. So I stopped and — they surveyed out the lot according to the description in the contract. And it didn't seem —
Q. "That is, the contract between you folks and the Picketts?
A. "Yes, that was the — a copy of the deed that we four people had had originally. And he came — Mr. Jude himself, I understood, came later and found a different line. That I don't know anything about, but it was pointed out on a sidewalk as his line. I says, 'That isn't — that isn't it, I'm sure.' And it didn't agree with the line that the boys run out according to that description, and I don't *Page 557 know where Mr. Jude started from or anything about that but it didn't agree with the other."
Plaintiff's counsel then inquired of the doctor if he could recall the date when the Jude survey was made, but he could not recall the exact date although he testified that a considerable part of the purchase price had then been paid. According to the contract, $40 was to be paid on or before June 1, 1934, the balance on or before November 1, 1934. But according to the receipts given by Dr. Lowe, $60 was paid first on June 18, 1934, and on July 18 and August 4, 1934, $160 was paid. The defendants testified that plaintiff was present at Buffalo at a conversation between themselves and Dr. Lowe in which Dr. Lowe requested the plaintiff to come up when the Jude survey was run to help establish the line but that plaintiff refused to be there and said the matter "was up to" the doctor. Plaintiff denies being present at this conversation, but the record is conclusive that the doctor had charge of the negotiations with the defendants. After the Jude survey was run nothing further was done to establish the true line between these properties until after these proceedings were taken.
During the summer of 1934 defendants allowed their lunchroom and bunkhouse to remain near plaintiff's garage without attempting to move it upon the property which they had bought. This inaction on their part resulted in two letters (July 25 and September 6) from the plaintiff asking them to move their structures onto the land which they had purchased. Later on he shoved one of the buildings northerly a couple of feet by pushing it with his truck. Plaintiff reasons that the Jude survey was not made until after these notices were sent, but his testimony developed the fact that he had no personal knowledge whatever of the time when the Jude survey was made. The defendants testified that the Jude survey was made while the negotiations were being had and before any of the money was paid, and they also testify, and it is undisputed, that they moved their buildings north of the Jude line after plaintiff's second letter, and that they spent approximately $500 in fixing up and improving the buildings and lots, relying upon the Jude *Page 558 line. It appears conclusively that Dr. Lowe agreed to have the line established, got Jude to run it, and after it was run by Jude took no steps to correct it if he believed it inaccurate.
Such being the case, we think that as a matter of law the defendants established their defense of an estoppel in pais against the plaintiff and that the evidence compelled a finding to that effect. Therefore we need not go into a discussion of the second defense.
The order appealed from is reversed and the case remanded with directions to amend the findings and conclusions and enter judgment in accordance with the views herein expressed.