173 P. 929 | Cal. | 1918
Ejectment to recover a strip of land containing about six and one-half acres. Judgment went for plaintiffs, and the defendants appeal.
The plaintiffs are the successors in interest of Manuel Silva. The defendants are husband and wife. For purposes of statement and discussion, we may treat the case as if Manuel Silva were the plaintiff and Joseph V. Azevedo the sole defendant.
In 1908, Azevedo purchased a tract of farming land, containing something over 126 acres, in Sacramento. The parcel was quadrilateral, its easterly and westerly lines being parallel, the southerly line meeting these at right angles, and the northerly line running diagonally from northeast to southwest. Roughly speaking, the length of the parcel, from north to south, was about three times its width, from east to west. Prior to the purchase of the tract there had been an understanding that the land was to be divided equally between Silva and Azevedo. Accordingly, Azevedo conveyed to Silva the east half of his holding, the land granted being described in the deed by metes and bounds. A fence was built, dividing the entire tract into two parcels, and each proceeded to occupy, improve, and farm the land on his side of the fence. After some six years, Silva discovered that the *497 had been placed about seventy feet too far east, and that a part of the land described in his deed, comprising the strip in controversy, was in Azevedo's possession. The present action resulted.
Azevedo's defense was based, principally, upon the claim that the fence line had been agreed upon as the boundary between the two parcels, and that such agreement was binding upon the parties. The rule invoked is a familiar one. An early case applying it, and one that has frequently been cited in this court, is Sneed v. Osborn,
On this state of facts, we think there was no room for any other inference than that the line indicated by the surveyor as the dividing line between the two holdings, and followed by the erection of a fence by the two parties, was agreed on by them as the true boundary. It is argued that the "agreed boundary" rule applies only where there is an uncertainty regarding the position of the boundary, and that in this case there was no such uncertainty, since the true location of the line could always have been determined by a correct measurement. But this condition exists in virtually every case in which the aid of the rule is sought. There is no occasion for asserting that a boundary has been established by agreement, unless the description in the conveyance in reality designates a different boundary. "It is only where the true location is subsequently ascertained that actions of this kind arise." (Price v. DeReyes,
It is true, as has repeatedly been held, that adjoining owners cannot, by their mere agreement, establish a boundary other than the true one, where they know that the line attempted to be fixed is not, in fact, the true boundary. (Nathan v. Dierssen,
The judgment is reversed.
Shaw, J., and Richards, J., pro tem., concurred.
Hearing in Bank denied.