York v. Horn

California Court of Appeal Oct 4, 1957 No. Civ. 9119Published

Before: Warne

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Holding. The court held that long-standing acquiescence to a fence line as a boundary is sufficient to establish an agreed boundary, and that landowners are entitled to the use of water from a spring located on their property when it is not part of a natural watercourse.

Issues

Whether the evidence supports the trial court's finding of an agreed boundary line based on long-standing acquiescence.
Whether the respondents were entitled to the use of spring water without a permit under the Water Code.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact of long acquiescence in the location of the fence is sufficient to establish the boundary line by agreement.”

“Without such evidence the respondents, as landowners, were entitled to the use of all the water from the spring.”

“It is only public water which requires a permit before it may be appropriated.”

WARNE, J. pro tem.

This case concerns a boundary dispute. Plaintiffs and appellants, the Yorks, sought to quiet title to certain lands which they alleged a survey showed to be theirs. The court quieted title in the defendants, the respondents, and this appeal followed. Appellants’ land lies north of, and adjacent to, the land of the respondents. A fence separates the property. In September of 1952, the appellants had the land surveyed and a result of the survey disclosed that the fence which separated the two parcels of property was located some 34 feet north of the true line and that a spring which was being used by the respondents was on the appellants’ land. Appellants then moved the fence to the survey line, and within a week or so respondents moved it back.

A Mr. Reiger, one of the Horns’ predecessors in interest, testified that the fence was there when he bought the land in

[211]

1946. A Mrs. Smith, whose husband purchased the property-now owned by the Horns in 1927, testified that when her husband purchased the property in 1927 there was an old fence along the north side of the property; that he put in a new fence at that time along the line of the original fence; that the spring was at that time just a hole in the ground; that a survey was made at that time which disclosed that the fence was on the property line and that her husband then cemented up the spring, built a tank at the house and piped water from the spring to the house.

There was also evidence that there was a fence between at least a part of the property as early as the year 1900.

The court found, among other things, that prior to 1900 a substantial fence was erected at or near the boundary

line;

that the fence had been located and maintained in the same location ever since; that an implied agreement was formerly made as to the boundary line which plaintiffs ought not be allowed to deny, and that defendants have a prescriptive right to appropriate all the waters from the spring by reason of the appropriation of the waters since 1927.

Appellants contend on this appeal that they established that the fence was not the true boundary; that the respondents failed to prove any agreed boundary; that the respondents did not acquire title by adverse possession; that the respondents could not acquire appropriative rights in the spring water without a permit

York v. Horn

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