Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County, Super. Ct. No. MCV030162. Eric C. Wyatt, Judge.
Caswell, Bell & Hillison, and Randolf Krbechek, for Defendants and Appellants.
Law Office of Farmer & Joy, Jr., and Maurice E. Joy, Jr., for Plaintiffs and Respondents.
OPINION
Ardaiz, P.J.
Appellants Timothy Turner, Deanna Turner and Robert Kelley (hereinafter “appellants” or “the Turners”) purchased a parcel of real property adjoining, and just to the east of, property owned by respondents Ranbir Singh Sekhon and Shobha Sekhon (hereinafter “respondents” or “the Sekhons”). The Turners had their property surveyed shortly after their purchase. The survey showed that the western boundary of the Turner property was about 80 feet to the west of a north-to-south wire fence which ran along the length of the property. The Sekhons believed that this fence was the boundary between their property and the Turner property, and performed some earth grading or scraping on their property and right up to the north-south fence. The Turners brought this civil action to establish the western boundary of their property and to quiet title. They also sought damages for trespass and conversion. Although the disputed strip of land is only about 80 feet wide, it is almost 1,000 feet long and thus almost two acres in area.
The evidence presented at trial included the testimony of three surveyors. The jury determined that the boundary between the Turner and Sekhon properties was where the Turner’s surveyor said it was, i.e., about 80 feet to the west of the fence. The boundary was not the existing north-south fence, as the Sekhons contended. The Sekhons also contended that even if the survey by the Turners’ expert was correct, the north-south fence had nevertheless become the property boundary by adverse possession or by application of the agreed boundary doctrine. The jury rejected these contentions also. The jury did not, however, award the Turners any damages for trespass or conversion. The court entered judgment in accordance with the jury’s verdict, and the Sekhons appeal from that judgment.
APPELLANTS’ CONTENTIONS
The Sekhons contend that: (1) undisputed evidence established that the disputed strip of land became theirs by adverse possession; (2) the jury was not properly instructed; (3) undisputed evidence established that the north-south fence became the boundary line through application of the agreed boundary doctrine; and (4) “Turner failed to carry his burden of proof” and the jury’s verdict “is contrary to controlling precedent.” This fourth contention appears to be an argument that the judgment is not supported by substantial evidence, and we will treat it as such. As we shall explain, we find all of appellants’ contentions to be without merit. We will affirm the judgment.
FACTS
The Western Parcel (Sekhon)
The Sekhons purchased their parcel in 1991. The north-south fence was already in place when the Sekhons bought their property. They did not have the property surveyed, either before or after the purchase, until after the Turners showed Ranbir Sekhon the survey prepared by the Turners’ surveyor, Douglas Bredahl, in 2005. The Sekhon 1991 grant deed showed that the grantors were Paul and Andrea Devine, and that the property conveyed was “The W ½ of the W ½ of Lot 2 in the NW ¼, being the W ½ of the NW ¼ of Section 6, Township 12 South, Range 19 East, Mount Diablo Base and Meridian, according to the official plat thereof.” Paul Devine testified at the trial. He said that the fence in question was there when he sold the property to the Sekhons in 1991, that he did not know where the eastern boundary of the property was, that he had never been concerned about where the eastern boundary was and that he had never had the parcel surveyed. He never represented to the Sekhons or to anyone that the eastern boundary of the property was where the fence was. Devine testified that the fence had already been there when he had purchased the property years earlier from a Mr. Jim Berle. Berle made no representation to Devine as to where the eastern boundary of the property was. The property tax assessments received by the Sekhons throughout their period of ownership of their property have described the property’s acreage as “12.67” acres.
The Eastern Parcel (Turner)
The Turners purchased their parcel in May of 2005. They did not have the property surveyed before they purchased it because they wanted the property and there had been two offers by others to buy the property. The 2005 grant deed showed that the grantors were James Nohrnberg, John Nohrnberg and Lois Rockoff, and that the property conveyed was “The East ½ of the West ½ of Government Lot 2 in the Northwest ¼ of Section 6, Township 12 South, Range 19 East, Mount Diablo Base and Meridian, according to the Official Plats thereof ….” Thus the Turners acquired the east half of the west half of Government Lot 2, whereas the Sekhons owned the west half of the west half of Government Lot 2. John Nohrnberg testified at trial. He said that the property had been owned by family members for many years, with ownership passing from his maternal grandfather to his (John Nohrnberg’s) mother in or about 1965, then sometime later to his father, then to him and his two siblings. He never represented to anyone that the fence was the western boundary of the property. He did not know where the western boundary was. The property was simply undeveloped investment property.
Nohrnberg visited the property only once before the year 2000, and did not know who erected the fence or why it was placed where it was. He never had any dispute with the Sekhons about where the property boundary was. Nohrnberg did have one telephone conversation with Mr. Sekhon in late 2004. After the property had been listed for sale, and before the Turners purchased it, Mr. Sekhon called Nohrnberg and made a verbal offer to buy it. Sekhon’s offer was too low, so Nohrnberg and his brother and sister did not accept Sekhon’s offer. Nohrnberg considered Sekhon’s offer to be too low to “justify a response” to Sekhon, so Nohrnberg never had a second conversation with Mr. Sekhon to tell Sekhon of the rejection of Sekhon’s offer. During Nohrnberg’s one telephone conversation with Sekhon, there was no mention of property lines or boundaries. When the Turners first looked into possibly purchasing the property, the real estate agent’s listing on the property described it as 12.67 acres in area.
Subsequent Events
After the Turners purchased the eastern parcel, Timothy Turner hired surveyor Douglas Bredahl to survey it. He did this because he wanted to build on the property, and he knew there was a requirement any house pad had to be at least 10 feet away from a property line. Bredahl completed his survey in June of 2005. It concluded that the western boundary of the Turner property was approximately 80 feet west of the existing fence. Timothy Turner told Ranbir Sekhon about the results of the Bredahl survey. Timothy Turner did this not because of any concern about the north-south wire fence, which he simply considered to be a cattle fence located on the Turner property. He did this because the Sekhons had another fence along the northern edge of the Sekhon property (i.e., an east-to west fence) which connected to the north-south fence, and Timothy Turner wanted to let Sekhon know that the western 80 feet or so of this northern edge fence was on the Turner property and that Turner was going to remove that portion of the northern fence.
The Sekhons hired a surveyor, Dale Mell, who concluded that the boundary between the Sekhon property (on the west) and the Turner property (on the east) was very close to the north-south fence, and about 3 feet to the east of that fence. Thus, according to Mell, the north-south fence was on the Sekhon property. The Sekhons thus considered any disking or scraping done by Mr. Sekhon to the west of the fence to be work done on the Sekhons’ own property.
A third surveyor, Ronald Greenwood, also testified at trial. He was not retained by any of the parties. Earlier surveys he had conducted in the area were entered into evidence and were utilized by the retained experts (Bredahl and Mell) in the formation of their opinions. He testified that Mell’s survey was done incorrectly. We will have more to say about the testimony of the three surveyors in our analysis below of appellants’ contention that the jury’s verdict and the judgment entered thereon are not supported by substantial evidence.
Before directly addressing appellants’ contentions, we briefly restate some fundamental principles of appellate review.
APPELLATE REVIEW
“‘A judgment or order of the lower court is presumed correct.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 560.) “‘It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such showing, the judgment or order appealed from will be affirmed.…’ [Citation.]” (Walling v. Kimball (1941) 17 Cal.2d 364, 373; Hibernia Sav. etc. Soc. v. Ellis Estate Co. (1933) 132 Cal.App. 408, 412.) “All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal.” (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681; Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.) “The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.” (Coleman v. Farwell (1929) 206 Cal. 740, 741.) “‘“[E]rror must be affirmatively shown.”’” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citation.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Substantial evidence is evidence “‘of ponderable legal significance, … reasonable in nature, credible, and of solid value.’ [Citations.]” (Id. at p. 873. italics omitted.) “When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]” (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429; in accord, see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) The testimony of a single witness found credible by the trier of fact “is by itself sufficient to constitute substantial evidence.” (City and County of San Francisco v. Givens (2000) 85 Cal.App.4th 51, 56.) This rule applies even when that witness is an expert witness. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 260; Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 243.)
I.
ADVERSE POSSESSION
“The elements necessary to establish title by adverse possession are tax payment and open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner and under a claim of title. [Citations.]” (Gilardi v. Hallam (1981) 30 Cal.3d 317, 321.) “Section 325 of [the Code of Civil Procedure] requires that to obtain title by adverse possession the land must be occupied and claimed for five years continuously and that claimants or their predecessors must have paid all taxes levied and assessed against the land.” (Ibid.) The jury was instructed accordingly.
Application of the substantial evidence rule leads us to the conclusion that there was ample evidence presented to the jury from which it could have concluded that Sekhon never paid property taxes on the disputed strip of land. The County assessor’s map showed the Sekhon parcel and the Turner parcel to be the same size, 12.67 acres. The Sekhon property tax bills entered into evidence showed that the Sekhons were assessed for 12.67 acres. Timothy Turner testified that he too was assessed for 12.67 acres, and his tax bills too were received into evidence. No survey or map showed the Sekhon parcel to be larger than this except for Mr. Mell’s survey, which was done after the June 2005 Bredahl survey. Greenwood explained that the sizes of the four parcels in Lot 2 were, from east to west, 12.67 acres (the Sekhon parcel), 12.67 acres (the Turner parcel), 15.83 acres and 15.83 acres, respectively. Bredahl explained that Mell’s survey incorrectly treated all four of these parcels to be the same size. If the jury had accepted Mell’s survey, Turner’s western property boundary would have been placed about three feet to the east of the fence. Because the eastern boundary of the Turner property was not an issue to be decided by the jury in this trial, the Turner parcel would have become about 9.84 acres in area, Sekhon’s property would have grown to 13.4 acres, and Turner would either have had to accept his smaller parcel or instigate litigation against his eastern neighbor, Mr. Bounds, in an attempt to move the eastern boundary of the Turner parcel about 167 feet to the east. Mr. Bounds testified at trial that he had had his own property surveyed, that his western boundary was correct as it was, and that if Mell’s survey was correct, the eastern boundary of the Turner property would run right through Mr. Bounds’ house.
We note that these numbers make it sound as if the Turner parcel would shrink more (12.67 – 9.84 = 2.73 acres) than the Sekhon parcel would grow (13.40 – 12.67 = 0.73 acres) under the Mell survey. The reason for this discrepancy appears to be that the widening in the 1980’s of Avenue 12, which runs east to west along the northern border of both parcels, cut into the actual useable area of both parcels, which is now about one acre less than 12.67 for each of the two equal parcels. The strip of land in issue in this case is about 1.82 acres in area. Under the Bredahl survey, each parcel is of equal size. Under the Mell survey, Sekhon’s western parcel would acquire the 1.82 acres the Bredahl survey attributes to the Turner eastern parcel, and the Sekhon parcel would be about 3.64 acres larger than the Turner parcel.
One of the questions submitted to the court by the jury during deliberations was: “Are you allowed adverse possession for 13+ acres if you only paid 12.67 acres of taxes, or only paid the assessed taxes per your deed?” The court told the jury: “Probably the most accurate answer is that that’s for you to decide. I’ll reread you the instruction and the instruction has the law and you’re going to have to decide what the answer to that is. That’s what your task is.” The court then reread the adverse possession instruction to the jury. It told them that one of the elements the defendants had to prove by clear and convincing evidence was “that the defendants have paid all the taxes levied and assessed on the property for at least five years.” The jury’s verdict expressly found that the Sekhons did not acquire the disputed strip of land by adverse possession. As we have explained, that finding is amply supported by substantial evidence.
II.
ALLEGED INSTRUCTIONAL ERROR
A. Pertinent Procedural Facts
The court instructed the jury that in order to acquire the disputed property by adverse possession the defendants had to prove five elements by clear and convincing evidence. These were:
“1. That defendants hold possession under either a claim of right or color of title,
“2. That there has been actual, open and notorious occupation of the premises by the defendants in such a manner that constitutes reasonable notice to the record owner of the property owned by the plaintiffs,
“3. That occupation by the defendants is contrary to the title of the plaintiffs,
“4. That the defendants have had uninterrupted and continuous possession of the property for at least five (5) years, and
“5. That the defendants have paid all of the taxes levied and assessed on the property during the five (5) year period.”
In the course of jury deliberations the jury submitted several questions to the court. First, the jury asked: “On the subject of property taxes, especially concerning adverse possession. Do you have the right to adverse possession if you have not paid the full taxes for the property attempting to take over? Or only after legally annexing the extra property do you need to start paying the property taxes?” The court told the jurors: “I’ve gone over the question with the two attorneys and the answer is, is to stick with just following the instructions about the burden of proof in terms of what the person who has the burden has to prove. And those are the things they have to prove to you. Okay. And consider that in light of the circumstances and the evidence of the case, but it’s just those elements that they have to prove and either they’ve proven those elements or they have not. And if that doesn’t necessarily answer your question as I framed it, obviously, you can submit another question. But those are the elements. There aren’t any additional elements. Either they’ve proven each of those things as set forth or they have not.”
Later in the day the jury requested “an explanation of ‘color of title’ and ‘claim of right.” The court consulted with the attorneys and gave the jurors an additional instruction agreeable to both sides.
Still later in the same day the jury took the court up on its earlier comment that “if that doesn’t necessarily answer your question … you can submit another question.” The jury asked: “Are you allowed adverse possession for 13+ acres if you only paid 12.67 acres of taxes, or only paid the assessed taxes per your deed?” The court told the jurors: “Probably the most accurate answer is that that’s for you to decide. I’ll reread you the instruction and the instruction has the law and you’re going to have to decide what the answer to that is. That’s what your task is.” The court then reread the adverse possession instruction in its entirety. After the jury resumed deliberations, the court asked both counsel if they had anything for the record. Both replied “No, Your Honor.”
A bit later the jury asked the court a procedural question about the special verdict form, and the court answered it.
The jury later advised the court that the jury had reached a verdict, but when the court polled the jury, there were only eight votes and not nine answering “No” to the special verdict question asking whether the Sekhons had acquired the disputed strip of land by proving the existence of the elements of adverse possession. This was late in the day on a Thursday, and the court ordered the jury to return on Monday morning to resume deliberations.
When the jury resumed its deliberations on Monday, it submitted two more questions to the court, both written on the same piece of paper. The first was a procedural question regarding the special verdict form and is not pertinent to this appeal. The second question read as follows: “The question of adverse possession – the 5 years specified in element 4 – Does that 5 year period begin from the defendents [sic] possession of his property or the time of the plaintiffs possession of the property (?)” The court first took input from the attorneys, outside the presence of the jury, on how to respond to the question. The Sekhons’ counsel told the court: “They may be hung up thinking that the five years can’t start until plaintiffs buy the property. That would not be true. That five years can start well before the time the plaintiffs brought [sic] the property and I believe that’s an answer that the Court can give to the jury.” Counsel for the Turners told the court: “Regarding counsel’s position on the jury instruction regarding adverse possession, I accept his statement as being the law, but those are arguments to be made before the jury in closing arguments and in evidence. That’s not part of the instruction and now is not the time to have argument in front of the jury.”
The court then called the jury back in and gave the jury an answer which included the following: “Then, in regard to question number 2, in adverse possession, I’ll start out somewhat vague and then maybe get maybe more specific. As you go through the jury instructions, there was nothing intended to be subtle about them or to be read into then [sic]. They were intended to be straight forward. [¶] In other words, nothing more, nothing less. And if there’s not a limitation on when something would occur that’s not specifically stated, that limitation doesn’t exist. Okay. [¶] In other words, the limitations are defined by the instructions themselves.” The court then urged the jurors to consider the elements of adverse possession one by one, and then stated: “And I’m not sure if that’s getting to really what you intended to ask, but in terms of what you intended to ask, I can’t give you when that time must have occurred based on the facts in this case. Okay. That’s an open question as to when that five-year period starts. You decide when that five-year period starts ….” After the jury returned to its deliberations, the court asked counsel if there was anything they wished to place on the record. Turners’ counsel replied “No.” The Sekhons’ counsel replied “No, Your Honor.” Later that day the jury returned its verdict finding that the property boundary was as described in Bredahl’s survey, and that the Sekhons had not acquired the disputed strip of land by adverse possession or by application of the doctrine of agreed boundaries.
Appellants now contend that the court committed instructional error.
B. The Alleged Errors
First, appellants contend “[t]he jury should have been instructed that the five-year period of adverse possession had been satisfied.” The law states otherwise. In a jury trial, “an issue of fact must be tried by a jury.” (Code Civ. Proc., § 592.) The court “must inform the jury that they are the exclusive judges of all questions of fact.” (Code Civ. Proc., § 608.) The trial court correctly did so in its instructions. It told the jury: “You must decide what the facts are. You must consider all the evidence and then decide what you think happened. You must decide the facts based on the evidence admitted at this trial.” (See CACI No. 5000.)
Appellants next contend that the jury’s question about whether the five-year period for adverse possession could begin before the Turners purchased their property “should have been resolved by the trial court, as requested by Sekhon’s counsel … and as requested by the jurors.” The court did answer this question. It told the jurors “if there’s not a limitation on when something would occur that’s not specifically stated, that limitation doesn’t exist.” After the court gave its clarification and the jury resumed deliberations, the court afforded counsel the opportunity to place on the record any objection it had to the court’s handling of the question. None was made. Nor did the jury make any further request for any clarification. Appellants’ brief quotes a portion of the court’s response to the question, but omits the portion of the court’s response in which the court told the jurors “if there’s not a limitation on when something would occur that’s not specifically stated, that limitation doesn’t exist.” Appellants’ counsel told the court, before the court gave its clarification: “That five years can start well before the time the plaintiffs bought the property and I believe that’s an answer that the Court can give to the jury.” It appears to us that the clarification given by the court did convey this to the jury. If appellants are contending that the court should have given its clarification in the same language used by counsel, the court was not required to do so. The court may well have felt that this language was unduly suggestive of a conclusion that the five years did start. The five years could “start well before the time the plaintiffs bought the property” only if the jury found by clear and convincing evidence that it did so start. The court utilized what it deemed to be more appropriate language to answer the jury’s question.
Appellants next contend that the court erred in refusing to give several instructions they requested. They list these rejected instructions on page 31 of their brief. We need not repeat them here verbatim. We need only say that, with the possible exception of one of them, these proposed “instructions” were not instructions of law, but rather were proposed factual findings which appellants asked the court to recite to the jury as “instructions” to prevent the jury from reaching any contrary conclusions. It was the jury’s job, not the trial judge’s, to make factual findings. (Code Civ. Proc., §608.) The one requested instruction which sounds like a principle of law (“the method of surveying public lands does not provide for the survey of a township into smaller subdivisions in a quarter section”), was requested without citation to any authority and without any attempt to explain its applicability to this case. “The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.” (Coleman v. Farwell, supra, 206 Cal. at p. 741; see also Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, and Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) Appellants have shown neither.
III.
THE AGREED BOUNDARY DOCTRINE
“‘The requirements of proof necessary to establish a title by agreed boundary are well settled by decisions of this state. [Citations.] The doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position.’ [Citation.]” (Bryant v. Blevins (1994) 9 Cal.4th 47, 55, quoting in turn from Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707.) “The object of the rule is to secure repose, to prevent strife and disputes concerning boundaries, and make title permanent and stable. … If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds.” (Young v. Blakeman (1908) 153 Cal. 477, 482; in accord, Bryant v. Blevins, supra, 9 Cal.4th at pp. 54-55.)
The jury’s finding that the doctrine did not apply was amply supported by substantial evidence. There was no evidence whatsoever that any current or former owners of the Turner and Sekhon parcels ever entered into any express agreement that the fence would constitute the boundary between the two parcels. Turner acquired the eastern parcel and told Ranbir Sekhon about the Bredahl survey in June of 2005. There was no evidence, however, that at any time prior to June of 2005 any owner of one of these two parcels had any discussion whatsoever with any owner of the other parcel about where the boundary between the two parcels was located. There was no evidence of any boundary dispute until this boundary dispute between Turner and Sekhon occurred in 2005. And those two owners most certainly did not reach any agreement. They litigated in this case the issue of the location of the boundary.
Appellants contend that because the fence was there for many years, the jury should have inferred that the coterminous owners intended the fence to be the boundary between the two parcels. Even assuming, without deciding the issue, that the jury could have drawn such an inference from the existence of the fence for many years (but see Bryant v. Blevins, supra, 9 Cal.4th at p. 55, noting “a deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication”), the jury certainly was not required to draw such an inference. No witness testified that there was an agreement between any coterminous owners that the fence would be a boundary, and the jury could and did conclude that no such agreement existed. Appellants cite cases in which the trier of fact found an implied agreement on the location of a boundary, and the finding was then upheld on appeal. (See, e.g., De Escober v. Isom (1952) 112 Cal.App.2d 172, 176; and York v. Horn (1957) 154 Cal.App.2d 209, 212-213.) The jury in the case now before us made no such finding.
Appellants also cite Duncan v. Peterson (1970) 3 Cal.App.3d 607. In that case the plaintiffs brought a quiet title action and sought an adjudication that a 104-foot wide strip of land was theirs under the agreed boundary doctrine and also by adverse possession. The trial court found that the plaintiffs had not paid all taxes on the subject property and found for the defendants. The appellate court stated: “An agreement between coterminous owners may be inferred. The longstanding acceptance of a fence as a boundary between the parties’ lands is strong evidence of such an implied agreement. [Citations.]” (Id. at p. 611.) In Duncan the issue of whether there was an agreed boundary had been placed in issue by the complaint and by the evidence presented at trial, but the trial court failed to make a finding on that issue, and that failure required reversal. (Id. at p. 610-611.) The appellate court addressed the agreed boundary issue and stated: “In the case before us acquiescence existed for at least 42 years and probably longer.… There is no evidence in the record contradicting or even suggesting contradiction of an acceptance and agreement of the fence as the actual boundary.” (Id. at pp. 611-612.) The appellate court then concluded that the doctrine applied. It reversed the judgment and directed the trial court to enter judgment quieting the plaintiffs’ title in the strip of land. Unlike Duncan, however, there was no evidence in the case now before us of any “longstanding acceptance of a fence as a boundary between the parties’ lands.” (Id. at p. 611.) The only owner of either parcel who testified that he considered the fence to be a boundary between the two parcels was Ranbir Sekhon.
IV.
SUBSTANTIAL EVIDENCE SUPPORTS THE JUDGMENT
“In a boundary dispute the question of the legally recognizable boundary line is an issue of fact. [Citation.] ‘The appellate court must accept as established all facts and inferences favorable to respondent which find substantial support in the evidence’ [citation], and must reject those that will support a contrary conclusion [citation]. It must be assumed that every factual conflict was resolved by the [trier of fact] in favor of the prevailing litigant [citation]; and if two or more deductions may be reasonably drawn from the evidence, the reviewing court lacks the power to substitute its deduction for that of the [trier of fact]. [Citation.] These rules apply to boundary dispute cases. [Citations.]” (Gibson v. Cobb (1965) 236 Cal.App.2d 226, 230.) “In a boundary dispute, as in many other contested matters, it is for the [trier of fact] to weigh and evaluate the testimony of an expert witness.” (Id. at p. 234.)
In this case the jury accepted the testimony of surveyor Bredahl and rejected the testimony of surveyor Mell. It also appears to have credited the testimony of surveyor Greenwood, who testified that Mell’s survey was done incorrectly and that Bredahl used correct methodology. Appellants’ brief presents a lengthy argument attempting to persuade us that Mell’s survey was done correctly and Bredahl’s was done incorrectly, but the jury concluded otherwise. What we do not see is any rule of law applied to any undisputed fact or facts which would require us, as a matter of law, to reach the conclusion that the correct boundary was the one found by Mell (about three feet east of the fence) and not the one found by Bredahl (about 80 feet west of the fence).
Appellants say much about a September 1911 deed conveying what is now the Sekhon parcel (“The W ½ of NW ¼ of NW ¼ of Section 6”) and a November 1911 deed conveying what is now the Turner parcel (the “E ½ of NW ¼ of NW ¼ of Sec. 6”), but appear to ask us to conclude as a matter of law that the Sekhon west half is larger than the Turner east half.
A “township” is divided into 36 “sections.” Each section is generally, but not always, one square mile or 640 acres. The top 6 and western 6 sections of a township are “correction sections.” “All the corrections ... get shoved into” the correction sections. A correction section might therefore be larger or smaller than 640 acres. The parcels in issue in this case are located in Section 6 of Township 12 South. Section 6 is the section in the northwest corner of Township 12, and thus is a “correction section.” The four corners of a section are called “section corners.” When section is divided into fourths (or “quarters”), a surveyor will need to find a point that is half way between each of the section corners. This is called a “quarter corner.” Each section will have four quarter corners: a “north quarter corner” located along the northern boundary of the section, and “east quarter corner” located along the eastern boundary of the section, and so on. Both the Sekhon and the Turner parcels have their northern boundary along the northern boundary of Section 6. The location of the north quarter corner of Section 6 was thus of interest to all three of the surveyors who testified. Bredahl and Greenwood considered it to be in one location and Mell considered it to be in another location about 108 feet farther east. The jury accepted the Bredahl survey.
Appellant argues that the correct location of the north quarter corner of Section 6 is where the U.S. government placed that quarter corner, that Mell’s survey places it there, and that therefore Mell’s survey is correct as a matter of law. We have no quarrel with the proposition that the location of a quarter corner as originally fixed by the government would be the correct location of that quarter corner. “If the quarter corner accepted by … the surveying experts …was in fact the original quarter corner as fixed by the official Government Survey, it would have to be accepted under the law. The original government surveys, whether they are mathematically correct or grossly erroneous, control the location and length of boundaries of sections and parts thereof and the shape and size of tracts granted to patentees.” (Verdi Dev. Co. v. Dono-Han Mining Co. (1956) 141 Cal.App.2d 149, 152.) “A government township lies just where the government surveyor lines it out on the face of the earth. These lines are to be determined by the monuments in the field.” (Harrington v. Boehmer (1901) 134 Cal. 196, 199.) “A survey of public lands does not ascertain boundaries; it creates them. [Citations.]” (Cox v. Hart (1922) 260 U.S. 427, 436; in accord, see Phelps v. Pacific Gas & Elec. Co. (1948) 84 Cal.App.2d 243, 247.) The flaw we see in appellant’s argument is that there is no undisputed evidence that the government originally fixed the north quarter corner of section 6 at the spot Mell said was the north quarter corner of section 6. Neither party introduced any original government survey showing the location of that quarter corner. Appellant’s expert Mell testified that he never found any original government marker of the north quarter corner of section 6. The marker he found in 2005 and utilized as the north quarter corner of section 6 was in fact a marker placed there in 1964 by Greenwood as a marker of the south quarter corner of another section (Section 31) of another township located directly to the north of Township 12. Greenwood testified that this marker was not also the north quarter corner of section 6. The jury also saw the 1874 plat map for the township (Township 12 South, Range 19 East). This plat map showed that even back in 1874 the west half of Lot 2 in the northwest corner of Section 6 was 26.44 acres in area. Greenwood testified that the areas listed in the plat map were based upon what the government did when it originally surveyed the property in 1854. The Sekhon deed conveyed to the Sekhons the west half of this parcel. The Turner deed conveyed to Turner the east half of this parcel. Appellant has shown no error.
DISPOSITION
The judgment is affirmed. Costs to Respondents.
WE CONCUR: Vartabedian, J., Kane, J.