Copley v. Eade

[593]

NOURSE, P. J.

Plaintiff is the record title owner of the south one-half and defendant is the record title owner of the north one-half of Section three of Township 20 South in Monterey County. According to the official plat the south one-half contains 320 acres while the north one-half contains but 304 acres. An old cattle fence had been maintained for many years running across the section which the plaintiff claims to represent the dividing line between the two holdings. Surveys having been made it was disclosed that, if the fence were accepted as the dividing line, plaintiff would hold more than 320 acres and defendant would have but 254.8 acres. Plaintiff commenced this action to quiet title and to enjoin the construction of a new fence on the line of the new surveys. Defendant had judgment fixing the boundary line in accordance with the survey and finding that each was the owner of the acreage corresponding to the record title and the official' assessments for tax purposes.

Appellant's contention is not that the old fence followed the true half section line according to any survey, but that the fence became the boundary line by acquiescence or implied agreement. This presents a plain question of fact. There is no evidence of agreement or acquiescence other than the conceded fact that the parties pastured their stock up to the fence from a time as early as 1910.

Contra

is the evidence that both parties, and their predecessors, treated the fence as a cattle guard only, that both parties, and their predecessors, recognized and publicly stated that they were in doubt as to the true boundary line, and both agreed that a survey ought to be made to determine the boundary between their respective holdings.

The essence of the doctrine of a boundary being fixed by acquiescence is the implied agreement between the parties that a fence or other structure represents the true boundary and that the acquiescence of the parties, or their failure to object, supports an inference of such agreement. Essentially, the doctrine is a mixture of implied agreement and estoppel. (See

Board of Trustees

v.