Vella v. Ratto

Opinion

STONE, P. J.

Plaintiffs and defendant in this quiet title action purchased their respective parcels of adjoining property in 1964. The chain of title to each parcel traces back to a common owner, R. F. Covert, who in 1914 conveyed to Paul Thede the parcel now owned by defendant. The parcel retained by Covert, which bounds the Thede parcel on three sides, has remained intact through various conveyances up to the time plaintiffs took title. After plaintiffs purchased the Covert parcel, they discovered that according to the description in the deed the fence line encroached 50 feet on one side of their property and 80 feet on another, comprising a total area of approximately two acres.

Vellas brought this quiet title action, claiming title up to the survey lines, and Ratio cross-complained, seeking to quiet title according to the fence lines, under the doctrine of agreed boundary.

The essential elements necessary to establish an agreed boundary are well settled: (1) an uncertainty as to the true position of the boundary, (2) an agreement to establish a common boundary line, (3) marking or building up to the agreed boundary, (4) occupation of the real property to such line, and (5) acquiescence in the line thus established for a period equal to the statute of limitations.

(Morris

v.

Vossler,

110 Cal.App.2d 678, 682 [243 P.2d 43].) The last three elements are clearly established by direct evidence; it is the first two elements, uncertainty as to the true line and an agreement to establish the common boundary line, that present the troublesome questions.

Apparently the fence line which was inexistence in 1964, when plaintiffs and defendant acquired their respective parcels, was established by Covert and Thede prior to 1920. Other than the original deed from Covert, the

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common owner, there is no evidence of the circumstances surrounding the transaction in 1914 by which Covert carved the Thede parcel out of the whole. However, there is uncontradicted testimony that the fences which were in place when plaintiffs and defendant purchased their respective parcels in 1964, were in place in 1920. Mrs. Chatham, who with her husband purchased the property from Paul Thede in April of that year, testified that their property (now defendant’s) was bounded by a wire fence on the north, east and south sides. She said the property was continuously farmed and cultivated according to the fence lines until they sold the property in 1945. In fact, she stated that they planted grape vines and walnut trees on the property which is in dispute, and that no one ever disputed the fence fine as the boundary between the two parcels. Mr. and Mrs. Chatham sold the property to Mr. and Mrs. Smith, who were killed in an automobile accident, and Mr. and Mrs. Murrey purchased the property in 1947. They occupied the property until it was sold to defendant in 1964; during their 16 years of ownership the fences remained in the same position in which they were when the Chathams bought the property from Thede. The Murreys also cultivated all of the property up to the fences, until they sold to defendant.