O'Reilly v. Orradre

AGEE, J.

Plaintiff appeals from an adverse judgment in an action to enforce an alleged executed parol agreement to partition land and to quiet title thereto. The determinative issue on appeal is whether the trial court’s finding that the parties had not entered into any such agreement is supported by the evidence. We find that it is. The facts as disclosed by the record follow.

Miguel and Marianne Orradre were the parents of Elvira O’Reilly (plaintiff), Adrian J. Orradre (a defendant), and Michel Orradre.

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In 1935, they executed two deeds by which they conveyed their ranch lands in Monterey County to their children, reserving life estates in themselves. One deed con

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veyed parcels comprising 1,998.79 acres to Elvira. The other deed conveyed the remaining lands to Adrian and Michel and included a 360-acre tract known as the “Collins property.” This tract is the subject of this litigation.

In 1927, some eight years before, Miguel had, by a codicil to his will, devised the Collins property and three other tracts to Elvira. Upon his death in 1936, his will and codicil were admitted to probate. The final decree of distribution (incorrectly) recited that all of the lands described in the devise to Elvira had been conveyed to her prior to Miguel’s death. The decree did not purport to distribute any of the lands conveyed under either of the two 1935 deeds.

Miguel died in 1936. In 1938, his widow, Marianne, deeded to Adrian, Michel and Elvira, her life estate interest in the properties which had been respectively conveyed to them in 1935.

In 1939, Elvira orally leased her 1,998.79 acres to one Lanigan for cattle grazing purposes. The property was unfenced. Adrian ■ and Michel were raising sheep and, when Lanigan’s cattle began to wander onto their property, Adrian objected. Elvira and' Adrian discussed the matter and made a trip into the area together. This is located in the San Ardo district and the terrain is rugged. They stood on a high ridge overlooking the property and orally agreed that a drift fence should be placed along the line of the ridge rather than to have it follow the actual boundary line, which did not follow the contours but ran straight through canyons and ravines. This arrangement made the fence less expensive while serving the same purpose; which was to keep the cattle from straying. The fence line agreed upon ran through the Collins tract. Elvira erected the fence at her own expense. For the next 19 years, Elvira" and her lessee used the portion of the Collins property on “her side” of the fence for cattle grazing. Adrian has paid the taxes on the subject property since 1938.