Nutting v. Hulbert & Muffly, Inc.

WARNE, J. pro tem.

*

—This

is an appeal from the judgment in favor of respondents concerning a disputed boundary line.

Plaintiff, the record owner of Lots 2, 3 and 4 of Section 31 in Township 12 North, Range 12 West, M.D.M., in Mendocino County, brought suit to enjoin a trespass upon certain portions of said lands by the defendants. Defendants and cross-complainants denied the alleged trespass and by way of cross-complaint alleged that they were the owners of the land on which the plaintiff claimed the trespass occurred. The trial court found for the defendants and cross-complainants and also found that a fence separating the properties was an agreed boundary line, and entered judgment in favor of the defendants and cross-complainants.

Section 31 is a closing section of the township and the west boundary thereof is a correction line. The west half of the section was divided into four irregular lots, each bounded on the east by the center line of the section. The south quarter corner was known. However, the north quarter corner of the section had been lost for many years and was not discovered until a survey was made in 1954. The section corner common to Sections 25 and 36 of Township 12 North, Range 13 West, and Sections 30 and 31 of Township 12 North, Range 12 West, was known. The north quarter corner was actually some 1,100 feet further east from the common corner than called for by the government field notes and the plat made therefrom.

Separating lands of the contestants on east and west was a wire fence fixed to posts—and in some instances to trees— which runs generally in a north-south direction. The first part or section of this fence had been in place for some 30

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years except for a short distance at its southerly end where no fence existed. The second part of this fence runs in a southeasterly direction to a point on the south side of Lot 3, where it veers and runs easterly. This latter fence was erected about 20 years ago by appellant after a conversation with a Mr. Yollenweider, a predecessor in interest of appellant Nutting who agreed to its location. It joins the first part of the fence, so that the whole can be said to be one continuous fence.

Mr. Yollenweider testified that he had first leased the land in 1925 and purchased it in 1943; that during the time he owned the property he had a conversation with Mr. Hulbert about the first fence and as far as he was concerned it was agreed to be the boundary line; that he was under the impression that the property crossed the fence line in one or two places; either his property went over, or the other property came back, so it was agreed that it would be about an equal swap, so the fence was left where it was; that he knew it wasn’t the true boundary but he did not know where the true boundary was. Mr. Yollenweider also testified that at the time he had this conversation with Mr. Hulbert, Hulbert and Bridges were building the second part of the fence and he asked them whether they were going to fence down the line or go down the road, and they talked things over; that he asked them to go down the road so that he would not have to erect any more gates or cattle guards. He figured that this last proposition would be about an even swap. Appellant testified that the first part of the'fence was in existence in the early 1920’s; that he had a conversation with Mr. Yollenweider when he was building the second part of the fence and they agreed that the fence should run along a road instead of crossing it; that the fence as built was so close to the line that it would be accepted as a give and take proposition; that at the time the fence was accepted as a boundary he did not actually know where the lines were on the easterly boundaries of Lots 1, 2 and 3, but he knew that the fence was not actually on the line and that thereafter no one except the defendants used the property east of the fence.