Dibirt v. Bopp

BARNARD, P. J.

A certain block in Fresno is divided into twenty lots running from lot 1 at the north to lot 20 at

[542]

the south. According to the official map on file each of these lots is thirty feet wide except lot 20, which is thirty-three feet. In 1891 Conrad Bopp bought lots 19 and 20, August Bopp bought lots 17 and 18 and a Mr. Huber bought lots 15 and 16. At that time these lots were vacant, but the more northerly lots in the block were occupied, with fences between the holdings, and there was a fence near the southerly side of lot 14. There was only 180 feet between this fence and the street to the south of this block and, early in 1892, these three parties erected houses on their respective lots and built fences, each taking 60 feet of ground. The defendant, who is the widow of August Bopp, has resided on lots 17 and 18 since that time. The plaintiff purchased lots 19 and 20 from Conrad Bopp in 1902, receiving a deed, and since that time he has resided thereon.

Shortly before this suit was filed the plaintiff discovered that his deed called for 63 feet and brought this action to recover possession of a strip three feet wide which was then and for many years had been north of the fence which stood between his home and the home of the defendant. In her answer, the defendant set up as one defense that she had for more than five years held this strip adversely to the plaintiff and as another defense that for more than twenty-five years she and her husband, now deceased, had held the three-foot strip within an inclosure and had cultivated the same with the knowledge and consent of the plaintiff. The plaintiff recovered judgment, from which the defendant has appealed.

It appears from the evidence that the respondent paid all taxes assessed against lots 19 and 20 for each year from 1902 to the time of trial, and the defense of adverse possession could not prevail

(Staniford

v.

Trombly,

181 Cal. 372 [186 Pac. 599];

In re

Dixon, 120 Cal. App. 635 [8 Pac. (2d) 881]). The appellant contends, however, that it conclusively appears from the evidence that a dispute had arisen between these parties as to the location of their boundary line, that they settled the matter by agreeing on a certain boundary and erected a fence in accordance with such agreement, and that thereafter and for many years they acquiesced in the line so fixed. The general rule relied on by appellant is well established