#### Amelia B. Goldsborough, Appellee, v. James H. Pidduck *et al.,*Appellants.

1. Boundaries: evidence. Where the line of division between two adjacent city lots in a block of a certain length was in question, and the city plat, without indicating the width of the lots, showed them to be of about equal width, *held,*that this was sufficient evidence to justify a presumption that they were of equal width, and to sustain a verdict establishing the line in question accordingly.

2. -: -: surveyor’s plat. In such case a plat of the block, made by the surveyor who had surveyed it, is admissible to illustrate and explain the surveyor’s testimony in regard to the measurements made by him.

3. -: adverse possession. The fencing in of a portion of a neighbor’s lot by mistake, believing that the fence is on the true division line, and the occupancy of the land so inclosed for more than ten yfears, with no intention to claim any portion of the ’lot, does not give title by adverse possession; and, in an action in such ease to recover the inclosed land, an instruction that, in order for the defendants to establish their defense of adverse possession, it must appear that the plaintiff knew of their claim, and acquiesced in it, was not prejudicial to the defendants.

*600
      *Appeal from Woodbury District Court.*— Hon. Scott M. Ladd, Judge.

Thursday, February 2, 1893.

Action at law to recover possession of real estate. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendants *appeal.*—

Affirmed.

*Geo. M. Pardoe,*for appellants.

*T. F. Griffin,*for appellee.

Robinson, C. J.

— Block numbered 57 of Sioux City, according to the plat thereof made in the year 1858, contains six lots, which extend lengthwise from Main street, on the west, to Perry creek, on the east, and are numbered from north to south. The aggregate width of the six lots is three hundred and nineteen feet and six inches. The plaintiff owns the lot numbered 2, and defendants own the one adjoining it on the south, numbered 3. More than ten years before the commencement of this action, Mrs. Pratt, a grantor of the defendants, who then owned lot 3, for the purpose of inclosing it on the north, built a fence on or near the boundary line which separated it from lot 2, and the owners of lot 3 had occupied the ground south of that fence since that time. The plaintiff claims that the fence is six feet, seven inches north of the boundary line, and demands possession of a strip of land of that width south of the fence. Defendants claim that the fence is on the boundary line, and that they have held all of lot 3, including the strip claimed by plaintiff, for more than fifteen years, and that the right of action alleged in the petition did not accrue within ten years next preceding the commencement of this action. The verdict and judgment were in favor of the plaintiff for the land she claims. The jury *601found specially that the fence was not on the true boundary line, and that defendants were not entitled to the possession of the land in controversy by reason of adverse possession.

1. Boundaries: evidence. I. It appears that, if all the lots in block 57 are of uniform width, the claim of the plaintiff is well founded, for in that case each lot is fifty-three feet, three inches in width, and the line to which the defendants claim is but ninety-nine feet, eleven inches south of the north boundary line of lot 1. As tending to show the width of the lots, the plaintiff introduced in evidence a part of the plat book of Sioux City, showing the block in question and adjacent portions of the plat. The defendants complain of the ruling of the court in receiving that evidence, but no objection was' made to it when offered, and we will not consider one made for the first time in this court. The plat did not show the size of the lots in block 57, but showed them to be of about equal width, and that, if they varied in width, lot 3 was one of the narrowest of the six. Block numbered 60, west of and separated from block 57 by Main street, contains an alley which extends from east to west, opposite the south boundary line of lot 3, and some claim is made by the defendants that an allowance should be made for such an alley in block 57; but there is no evidence whatever that the block last named ever contained an alley, and an allowance for one should not have been made. The evidence on this branch of the case to show that the lots were of uniform width, and that defendants were occupying and claiming a part of lot 2, was sufficient to sustain the verdict of the jury.

_. *2.*surveyor’s plat. II. A plat of block 57, made by a surveyor who surveyed it, was introduced in evidence. It tended to explain and illustrate the testimony of the surveyor” in regard to the measurements he had made, and was properly *602received in evidence. *Messer v. Reginnitter,*32 Iowa, 312.

3>_. adverse possession. III. Objection is made to the sixth paragraph of the charge, on the ground that it instructed the jury,. in effect, that, in order for defendants to establish their defense of adverse possession, it must appear that the plaintiff knew of their claim, and acquiesced in it. We do not think the paragraph was prejudicial to defendants, in view of the facts shown by the evidence. It clearly appeared, that the owners of lot 3 have not at any time claimed to own any part of lot 2, and that their occupation and. claim of ownership have been founded upon the belief that the fence was on the true boundary line between the lots. There was no intention to claim title to any part of lot 2, and the jury would not have been authorized to find that defendants had acquired title by adverse possession. See *Grube v. Wells,*34 Iowa, 148; *Solberg v. City of*Decorah, 41 Iowa, 501; *Skinner v. Crawford,*54 Iowa, 119; *Weinig v. Holcomb,*73 Iowa, 143; *Fisher v. Muecke,*82 Iowa, 547.

We discover no ground for disturbing the judgment of the district court. Appibmed.