Talmadge v. Moore

MUSSELL, J.

Action for injunction to enjoin trespass on real property.

Plaintiffs and defendants own adjacent lots in Block 61 in the city of San Bernardino. Both lots front on “D” Street (a north and south street) in said city and extend westerly therefrom. Plaintiffs’ lot is 250 feet in depth and that of the defendants 300 feet. The center line of the block running west from D Street is the boundary line separating the two properties and the controversy herein involves the location of this line on the ground. Both the complaint and cross-complaint, in describing the properties involved, refer by lot and block to the same common boundary line as separating them.

Plaintiffs brought this action to enjoin alleged actual and threatened trespass on their land by the defendants and the defendants in turn cross-complained to enjoin the plaintiffs from actual and threatened trespass on their land.

It is admitted that the parties own the lands as described in the complaint and cross-complaint and that the taxes have been paid by the parties as their interests appear of record.

The trial court found, among other things, that the parties own the property described in their respective pleadings: that the true boundary line separating the two properties is an east and west line bisecting said Block 61, which line is delineated on the ground by certain iron pipes set in concrete by Charles L. Foulke, a licensed surveyor. Judgment was entered accordingly and the defendants were restrained and enjoined from entering upon the property of the plaintiffs.

From this judgment the defendants appeal, contending that the evidence is insufficient to support the findings of fact

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and the judgment; that the boundary line between defendants’ property and that of the plaintiffs was established by agreement by the predecessors in interest of the plaintiffs on the one hand and the defendants on the other; that in 1919 a dispute and uncertainty existed as to the location of the boundary line; that a survey was made and the line located by agreement; that the agreement had been acted upon and acquiesced in until February, 1947; that the court erred in failing to find specifically upon the question as to defendants’ right to use a driveway alleged to have been used by them for many years. The contention that the evidence is insufficient to support the findings and judgment is without merit.