Indiana Law Journal
Volume 6 | Issue 8
Boundary Agreements-Enforcement When in
Existence for a Period Less than Required to Pass
Title by Adverse Possession
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(1931) "Boundary Agreements-Enforcement When in Existence for a Period Less than Required to Pass Title by Adverse Possession,"
Indiana Law Journal: Vol. 6: Iss. 8, Article 6.
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RECENT CASE NOTES
BOUNDARY AGREEMENTS--ENFORCEMENT WHEN IN EXISTENCE FOR A
PERIOD LESS THAN REQUIRED TO PASS TITLE BY ADVERSE POSSESSION-One
Sherrer in 1902 purchased lot 24 adjacent to lot 25 which was owned by
one Johnson. Sherrer contemplated building and, after speaking to Johnson of his plans, had a division line surveyed in 1903. The owners agreed
shortly after the survey that the line should be the division between the
lots. Sherrer built a two-story brick structure in reliance on the agreement and Johnson not only watched the process of construction but he told
Sherrer and the workmen to cut away a portion of the eaves which extended from Johnson's frame building over the agreed line. The appellant,
who is successor of Johnson, brought action against appellee, who is successor Sherrer, in ejectment and to quiet title to a strip of property found
by a recent survey to originally belong to the appellant. Held, affirmed.
Whenever adjoining owners agree as to the boundary between them and
in reliance thereon expenditures are made, each party, in the absence of
fraud, will be estopped to deny the agreed boundary as the true line.
Babacz v. Kirk, Appellate Court of Indiana, 1930, 171 N. E. 492.
The law of boundary agreement varies so greatly that it is considered,
by the authorities, almost impossible to generalize from the cases in the
various jurisdictions. Tiffany, Real Property, 996. The law of other jurisdictions will be found discussed in 8 Tex. L. Rev., 610; 14 Calif. L. Rev.,
138-141, 23 Mich. L. Rev., 547.
A parole boundary agreement, according to Indiana cases, must arise
from an express agreement between adjoining owners. Ball V. Con, 7 Ind.
456; Rosenmeier v. Mahrenholz, 179 Ind. 467, 101 N. E. 721. It must be
based on a valuable or mutual consideration. Wingle v. Simpson, 93 Ind.
201; Fuelling v. Fuesse, 43 Ind. App. 441, 87 N. E. 700. The agreement
must concern the location of the boundary between their properties, the
exact location of which is unknown to either party. Adam v. Betz, 167
Ind. 161, 78 N. E. 649. Indiana has been very strict in these requirements and, if one of the elements are not present, the courts will not give
the agreement legal effect by enforcemnt.
The problem necessarily involves a consideration of the. statute of limitations, the statute of frauds, and estoppel arising from acts of the parties
in acquiescence or reliance upon the agreement sufficient to make it inequitable to place the boundary in its original or correct position.
Discussing the problems separately, the statute of limitations is first for
consideration. Title will pass by adverse possession regardless of the parole
agreement or compliance with the statute of frauds. There is no doubt on
this point; but the giving of legal effect to the boundary agreement that has
not existed for a sufficient period to pass title by adverse possession has
caused the courts some trouble. The results are sometimes very inequitable
whenever the parties make large expenditures in reliance upon the agreed
boundary unless the courts can find a legal reason to support the agreement
RECENT CASE NOTES
and make it binding when its non-enforcement would be inequitable. The
early case of Myers v. Johnson, 15 Ind. 266, in which the parties agreed
upon a boundary and made improvements in reliance upon the agreement
so as to make it inequitable to change the agreed boundary, is the first
case in Indiana giving full legal effect to the established line, even though
it had not existed for the full statutory period. This was a bold step and
some later cases were not willing to venture away from adverse possession
as a basis for their decision, although they do mention the element of reliance and acquiescence in the agreement as an additional reason for the decision. The tendency to combine adverse possession and acquiescence or
estoppel in support of the agreement is shown by the following language
used in numerous decisions: "The location of a division line between two
land proprietors, acquiesced in and acted upon, and the premises improved
up to the line by each for twenty years becomes binding as the true line."
Ball v. Cox, 7 Ind. 453; Brown v. Anderson, 90 Ind. 93; Dyer v. Eldridge,
136 Ind. 654, 36 N. E. 522; Burr v. Smith, 152 Ind. 469; Helton v. Fastnow,
33 Ind. App. 288, 71 N. E. 230. But more recent cases in which the element
of adverse possession was not present go back to Myers v. Johnson, supra,
and give full legal effect to agreements that have been relied upon to the
detriment of either party. Adams v. Betz, 167 Ind. 161, 78 N. E. 649;
Furst v.Satterfield,44 Ind. App. 613, 89 N. E. 906; Baker v. Johnson,79 Ind.
413, 138 N. E. 780; Seaver v. Vonderahe, 74 Ind. App. 613, 127 N. E. 206.
The extent to which a party must rely upon an agreement to amount to an
estoppel is a question of fact. Mere possession would, no doubt, not be a
sufficiently determinable act to constitute an estoppel, but it is decided that
the building of fences along the agreed line in reliance upon the agreement
will be an act sufficient to make it inequitable to place the boundary in its
correct position, thus giving full legal recognition to the new boundary
upon which the parties have agreed. Wingler v. Simpson, 93 Ind. 201;
Welborn v. Kimberly, 42 Ind. App. 98, 89 N. E. 517; Furst v. Vonderahe,
74 Ind. App. 613, 127 N. E. 208; Stalcup v.Ingle, 76 Ind. App. 697; Adams
v. Betz, 167 Ind. 161, 78 N. E. 649. Any greater erection of improvements,
like the erection of a building in the instant case, would give the courts a
stronger reason to support the agreement.
The question of the statute of frauds is clearly involved in boundary
agreements. Fuelling v. Fuesse, 43 Ind. App. 441, 87 N. E. 700. But a
consideration of the statute of frauds is merely incidental and does not
change the result which the courts reach in applying the rules of estoppel
and acquiesence mentioned above. The boundary agreement is within the
statute of frauds in Indiana, Fuelling v. Fuesse, supra, but it is taken out
of the statute by some act sufficient to make it inequitable to place the
boundary in its original and correct position. Tate v. Foshee, 117 Ind. 332,
20 N. E. 241; Fuelling v. Fuesse, supra. This same act sufficient to constitute an estoppel under the statute of frauds was also incidentally the
same basis for supporting the boundary agreement on the doctrine of acquiesence and estoppel discussed heretofore in connection with the support
of the agreement upon that basis alone.
The agreement, in the instant case, arose from an express mutual agreement between adjoining land owners concerning the boundary between
them, the true location being unknown to either. All the prerequisites to
INDIANA LAW JOURNAL
enforcement in Indiana are present in this parole agreement. The building
was erected along the agreed line in reliance upon the agreement and if
the boundary line were to be placed in its original position, a part of the
brick building would have to be cut away. Clearly the non-enforcement of
the agreement would be inequitable, and the court rightly supported the
agreement although it had not existed for the statutory period of limitaJ. B. E.
CONVICTS-PRISON MADE GOODS-INDIANA STATE FARM-The plaintiff,
an Indiana corporation, manufacturers of floral baskets, while the defendants, the superintendent and board of commissioners of the Indiana State
Farm, direct and supervise the production of floral baskets, among other
things, at the state farm. Defendants contended that they had authority
to manufacture these baskets under section 12440 and 12444 Burns Ann.
St. 1926; but plaintiff thought otherwise and brought suit to enjoin defendants permanently from manufacturing this article. Trial court gave judgment to the defendants. Held, reversed. Ove Gnatt Co. v. Jackson, et al.,
Appellate Court of Indiana, November 18, 1930. 173 N. E. 335. (This
opinion supersedes the one given at 171 N. E. 221.)
When the state farm was established in 1913 the Legislature declared
that its purpose should be "to employ prisoners committed thereto to work
on or about the buildings and farm; in growing produce and supplies for
its own use and for the other state institutions; in preparing road material;
in making brick, tile, paving materials and such other products as may be
found practicable for the use of the state or any municipal subdivision
therein." Acts 1913 c. 236, Burns 1926, Sec. 12440. In 1917 the scope of
activity was enlarged; the board was empowered and authorized to manufacture such articles and products as might be found practicable for use
by the state, its institutions and its political sub-divisions, and to sell the
surplus, if any, on the market. Acts 1917 c. 83, Burns 1926, Sec. 12444,
12445. With the exception of 33, all of the 138,612 floral baskets made at
the state farm in 1927 were not sold to state institutions or subdivisions,
but were sold on the open market in competition with such baskets manufactured by free labor at a price, alleged by plaintiff, to be 40 per cent
below what it could manufacture them for. This case exemplifies the
typical problem which prison labor raises. As the court says: "The problem is a difficult one to solve. Indeed, it would be hard to conceive of an
industry at which prison labor could be employed that would not, in some
degree, come into competition with free labor and some existing manufacturing establishment." Expressed differently: "As long as the wage paid
to convicts remains, as it now is, materially less than that paid to free
labor, both free labor and the employer of free labor must inevitably be
under a disadvantage." 25 Col. Law Rev., 815. Under any system free
labor must meet the competition of convict labor. Ward v. City of Little
Rock, 41 Ark. 526. The fact that the matter is controversial and difficult
is one point upon which all authorities agree. Add to this the now universally accepted theory that in the interests of society convicts must be kept
busy at some useful occupation and one realizes the extent of the dilemma.
Confronted by two conflicting public policies the legislatures are hard
pressed to find a way out. In this country six principal systems of utiliz-