Opinion
5-16-1950
MELLO et ux. v. WEAVER. Civ. 4045.
George A. Moran, Fred J. Heid, Jr., Tulare, for appellant. Louis J. Coelho, Fresno, for respondents.
MELLO et ux.
v.
WEAVER.
May 16, 1950.
Rehearing Denied June 5, 1950.
Hearing Granted July 14, 1950. *
George A. Moran, Fred J. Heid, Jr., Tulare, for appellant.
Louis J. Coelho, Fresno, for respondents.
SHEPARD, Justice pro tem.
Action to quiet title. Boundary dispute.
Plaintiffs sued to quiet title to a strip of land about 1321 feet long, 102 feet wide on the north end and 98 feet wide on the south end, lying along the west boundary of plaintiff's land and the east boundary of defendant's land and for damages for dispossession. Defendant denied ownership in plaintiffs and alleged ownership in himself. Trial was had before the court without a jury. Judgment was rendered for plaintiffs and defendant appeals.
The material facts are substantially without conflict. Plaintiff Joe L. Mello and Charles L. Weaver did practically all negotiating so that references hereinafter to plaintiff and defendant in the singular are to them, unless otherwise specified.
Defendant, in 1930, owned the southeast quarter of the southwest quarter and the east three acres of the southwest quarter of the southwest quarter of section six, township twenty south, range 24 east, M. D. B. & M., in Tulare County. Plaintiff, in that year, asked defendant if his land was for sale. Defendant replied it was and directed plaintiff to go see it and that the tenant Tony Molles, on the place would show it. Plaintiff went to the place. Tony Molles showed it. The record does not indicate that said tenant ever pointed or referred to any boundaries or that plaintiff and defendant ever directly discussed this boundary at all until 1946. However, there was in place in 1930, a barbed wire fence along the line which plaintiff claims to be the true boundary. The record does not show how or why the fence came into existence except that defendant's father, at a time when he owned the entire quarter section, built it without reference to property lines. The land under dispute lies immediately east of said fence. Defendant sold said southeast quarter of the southwest quarter and the east three acres of the southwest quarter of the southwest quarter of said section to plaintiffs in 1930. Since that date plaintiffs were in peaceable possession of the land under dispute until April of 1948, and farmed, cultivated and grew surface crops on the land in dispute until he was dispossessed by defendant in 1948. In 1939, defendant acquired the land in the southwest quarter of the southwest quarter lying adjacent to plaintiffs. The first direct suggestion that the line was in the wrong place was made in the year 1946, by defendant to plaintiff. Shortly before the commencement of this action defendant had the land surveyed and the true line was located. This was the first time either the plaintiff or the defendant knew that the fence was not on the true boundary line.
The evidence unequivocally shows that the taxes paid on the strip in dispute were paid by defendant. Plaintiffs paid their taxes for all of the years related according to the description set forth in their deed and there is no indication that any assessment was ever made of any valuable buildings or other improvements on the land in controversy nor that plaintiffs ever paid any such taxes or any taxes at all on the land in dispute.
There is no word of testimony that the plaintiffs or the defendant believed or declared this boundary line to be uncertain until after the acquisition by defendant of the property to the west and the urging of defendant for a survey. There is no testimony about any agreement fixing the fence as the accepted boundary line because of such uncertainty. On the contrary, the evidence affirmatively shows that no such agreement was ever made.
The whole case of the plaintiffs resolves itself down to this, that plaintiffs did not know where the boundary line called for by their deed was but supposed it to be the fence here under dispute. There was no uncertainty even upon the face of the deed. The fence, as the boundary line, was a mere assumption upon their part. Plaintiffs exercised certain acts of dominion and control over the disputed strip. From the acquiescence by his silence of the coterminous owner to the west it is argued that this acquiescence having continued for a period beyond that required by the statute of limitations gives rise to the conclusive presumption of previous agreement or if not to the conclusive presumption, at least to a presumption which has not been rebutted by any evidence.
As was said in Clapp v. Churchill, 164 Cal. 741, at page 745, 130 P. 1061, at page 1062: 'But the doctrine of an agreed boundary line and its binding effects upon the coterminous owners rests fundamentally upon the fact that there is, or is believed by all parties to be, an uncertainty as to the location of the true line. When that uncertainty exists, or is believed by them to exist, they may amongst themselves by agreement fix the boundary line, and that agreement will bind all the consenting parties. Acquiescence is merely evidence of the agreement and can properly be considered as evidence of an agreement only when a formal agreement would itself have made a binding contract. But a formal agreement to fix a boundary line is not valid, indeed is void, if the parties know or one of them knows, that the agreed line is not the true line, or, in other words, if there be not an actual or believed uncertainty as to the true line.'
On the subject of certainty, the general rule which controls a case involving the circumstances here at bar is contained in Janke v. McMahon, 21 Cal.App. 781, 788, 133 P. 21, 24, citing from Hartung v. Witte, 59 Wis. 285, 18 N.W. 175: 'Where there is an acquiescence in a wrong boundary, when the true boundary may be ascertained by the deed, it is treated, both in law and equity, as a mistake, and neither party is estopped from claiming to the true line. The boundary is considered definite and certain when by survey it can be made certain from the deed.'
In Pedersen v. Reynolds, 31 Cal.App.2d 18, 25, 87 P.2d 51, 55, the court said: 'When a fence is built along an arbitrarily accepted line as a mere accommodation or convenience to the builder thereof without any mutual purpose or understanding to thereby locate an uncertain boundary line between cotermious owners of land, the fence may not be said to establish the line by acquiescence and the owner is not estopped from thereafter claiming title to the true line.'
One of the elements missing in plaintiffs' assertion of title is the compliance with the requirement of section 325 of the Code of Civil Procedure that he shall have shown that he paid all taxes on the land under dispute for the minimum period of five years.
As is said in Sorensen v. Costa, 32 Cal.2d 453, 466, 196 P.2d 900, 908, 'There is no question that a person claiming title by adverse possession must show that he and his predecessors actually paid the taxes assessed on the particular land occupied, and he cannot show compliance with section 325 of the Code of Civil Procedure by merely proving that he and his predecessors 'thought or supposed they were paying taxes' on the land occupied by them, when the lands were assessed under a correct description that applied to other land.'
In the case at bar the evidence is entirely devoid of any agreement that the fence should be the true line and there is no positive act of either party such as the building or rebuilding of a fence, monument, building or other market along the line claimed, from which an agreement or intention of both parties might be implied. Acquiescence alone is insufficient. Copley v. Eade, 81 Cal.App.2d 592, 184 P.2d 698; Phelan v. Drescher, 92 Cal.App. 393, 397, 268 P. 465.
Further, if we assume respondents to be proceeding under the theory of adverse possession there is no proof to show payment of taxes by plaintiffs in accordance with the provisions of section 325 of the Code of Civil Procedure.
The motion for a new trial should have been granted. Judgment reversed.
GRIFFIN, Acting P. J., and MUSSELL, J., concur. --------------- * Subsequent opinion 224 P.2d 691.