Beall v. Weir

COOPER, P. J.

This action was brought by the plaintiff as road commissioner for the purpose of abating a certain post and wire fence alleged to have been erected and main

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tained by the defendant on a public highway in Fresno county. The defendant admitted that he constructed and maintained the fence, but claimed that such fence was not upon a highway, but upon his own land.

Upon the issue thus made the court found in favor of plaintiff, and ordered the fence abated as a public nuisance, and judgment was accordingly entered. Defendant prosecutes this appeal from the judgment and from the order denying his motion for a new trial.

Defendant, no doubt in good faith, believed that he owned the land upon which he erected the fence. His counsel states in his brief that “the only issue in the case is the location of the section line between sections 23 and 26 in township 13, S. R 21.”

After carefully examining the record we are of the opinion that the issue in the case is as to the correct location of the boundaries upon the face of the earth according to the calls of a deed made by the then owner of the land to the county of Fresno for a right of way for a public highway, and whether or not the place where the fence was erected is within the exterior calls of said deed.

On June 29, 1888, one Bggers was the owner of said sections 23 and 26, and while so the owner he conveyed by deed to the county of Fresno a strip of land sixty feet wide, being thirty feet on each side of the section line between sections 23 and 26, and extending east and west across the entire section, or, in other words, he conveyed a strip of land thirty feet wide off the south side of section 23 and a strip of land thirty feet wide off the north side of section 26. Prior to the time Bggers made the deed to the county of the right of way the section lines in the township had been located or had been attempted to be located by one Manuel, by surveys made by said Manuel, who drove redwood stakes down in the ground to mark the section corners at the east and at the west end of what was believed to be the true section line dividing said sections 26 and 23. The people in .the township, so far as appears, were governed by the survey so made by Manuel and the corners as fixed by him. The surveyor of the county, McKay, made a survey in 1898, along the east line of said section 23 and found the redwood post at the southeast corner which had been placed there by Manuel in making his orig