Crook v. Leinenweaver

[791]

BARNARD, P. J.

This is an action to establish a boundary-line and to compel the removal of portions of certain structures on the land claimed by the plaintiffs.

In 1924, a tract of land owned by a bank was subdivided. The westerly portion of Lot 99 of that subdivision, which is now owned by the plaintiffs, was conveyed by a deed referring to the lot number and describing the part conveyed by metes and bounds. The part of Lot 99 thus conveyed was rectangular in shape but somewhat irregular in that its southerly line was some 20 feet longer than its northerly line, and its westerly line was about 100 feet longer than its easterly line. In 1926, the defendants acquired the easterly portion of Lot 99 by a deed conveying all of that lot except a portion described by metes and bounds, the latter being the same metes and bounds described in the prior deed.

The original survey of the property in 1924 was made by one Bradley, a licensed surveyor, who placed a stake in the northerly line of Lot 99 and one in the southerly line of that lot for the purpose of indicating the boundary line between these parcels. This line is referred to as the “Bradley line.’’ In 1946, the plaintiffs employed a licensed surveyor named Davidson, who fixed the easterly boundary of plaintiffs’ land by taking a point 2 feet easterly at the north and one 5.65 feet easterly at the south from the stakes set by Bradley 22 years before. This strip of land, 2 feet wide at the north and 5.65 feet wide at the south, is the area here in dispute.

The plaintiffs brought this action claiming that the Davidson line is the true boundary line, and alleging that the defendants have deprived them of the use of the disputed strip and have constructed portions of structures thereon which they refuse to move. The defendants answered claiming ownership of the disputed strip and asking that it be adjudged that the Bradley line is the true boundary line. The court made findings favorable to the defendants, but concluded that the facts found required a judgment in favor of the plaintiffs, and such a judgment was entered. The defendants moved to vacate the judgment under the provisions of sections 663 and 663a of the Code of Civil Procedure. An order denying that motion was entered, and the defendants have appealed from that order. The appeal is thus presented on the clerk’s transcript alone.