Pra v. Bradshaw

MOORE, P. J.

Respondents sued to quiet title to land on which appellants constructed an encroaching brick wall. By the judgment, title was quieted subject to the right and easement of appellants to maintain the wall in its present form, condition, extent and location so long as it remains in existence in its present form, extent and condition, with minor repairs.

Respondents own Lot 39 of Ramona acres which they purchased in 1941. Appellants own Lot 38 which bounds Lot 39 on its north side. They face Nicholson Avenue on the west. Appellants purchased their property in February, 1936. At that time no markers could be found. Appellant fixed the dividing line between the two lots with the assistance of his vendor and one Milam, the reputed owner of Lot 39. This was accomplished by using (1) the fence standing between the rear portions of the two lots, (2) a telephone pole on the east side of the street which fronts the two lots that lie adjacent to the east ends of 38 and 39, and a telephone pole across Nicholson Avenue.

Appellant commenced the construction of the wall in 1939 and by December 22d of that year, 40 feet of it had been built. It was assessed to Lot 38 in 1939 and was so assessed for each succeeding year. It was never assessed to respondents or to Lot 39. In 1949 respondents discovered by means of a survey that the wall encroaches on Lot 39. Prior to such discovery, respondents believed the wall to mark the common boundary of the two contiguous lots.

[269]

Inasmuch as the boundary was properly described in the deeds of both parties, there had been no dispute as to the boundary prior to the survey. There had been only a mistaken acquiescence in what was believed to be the true boundary. In such situation, appellant asserting the south side of the wall to be the south boundary of Lot 38 and respondents’ acquiescing in such assertion, such acquiescence by respondents in a wrong boundary is considered in both law and equity as a mistake and either party is free to claim the true line.

(Rast

v.

Fischer,

107 Cal.App.2d 129, 133 [236 P.2d 393]; 4 Thompson on Real Property, p. 210, § 3115. See