Shanks v. Williams

Citations

• 93 Kan. 573
• 144 P. 1007
• 1914 Kan. LEXIS 472

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Mistake as to Boundary Line — Intention— Adverse Possession. When adjoining landowners treat a hedge between their tracts and near the true boundary line as a practical partition fence, hut are mistaken in supposing it to be upon the true line, and there is no agreement or recognition that it is to mark the real boundary and no intention by either to claim beyond the true line, the possession by either of a strip between the hedge and the true line is not adverse as to the other and does not under such circumstances ripen into title.</p> <p>2. Practicó — Case Tried on One Theory — Theory Will Not be Changed on Appeal. When the parties to an action have mutually adopted a theory and fully tried their controversy in accordance therewith this court will not on appeal adopt another theory and decide the case in accordance therewith, but will affirm or reverse according as the lack or presence of error shown by the record may require, upon the theory adopted by the parties.</p> <p>3. Trial — No Affirmative Belief- — No Material Prejudice. The defendant’s claim was submitted to the jury, but as he recovered nothing affirmatively no material prejudice on account of such submission, even if erroneous, resulted to the plaintiffs.</p> <p>4. Trial — Boundary Fence — Incompetent Evidence — Not Prejudicial. In an action by an adjoining landowner to recover for the destruction of a boundary fence it is not ordinarily competent to show that he owns various other tracts of land in the vicinity.</p>