Marsicano v. Luning
Before: Kerrigan
Synopsis
Ejectment for Small Strip of City Lot—Adverse Possession— Mutual Mistake—Taxes Paid by Each Record Owner—Finding Against Possession Supported.—Where plaintiff is the record owner of a city lot twenty feet wide, and defendant is the record owner of two lots of the same width, on each side of plaintiff’s lot, and plaintiff’s original building was totally destroyed by the fire of 1906, after which defendant surveyed one of his lots, and built foundation walls thereon, and began to build, whereupon the plaintiff, without sufficient proof, claimed that his original building encroached on said lot, by a strip six and three-quarters inches in width, and brought ejectment to recover the same claiming title by adverse possession, it is held that if it ever encroached thereon, it was by undiscovered mutual mistake, and in view of the fact that each record owner had paid taxes on his own lot for forty years, a finding that plaintiff never possessed such strip is sustained by the evidence, and has the effect to give to each lot owner his full record title.
KERRIGAN, J.
This is an appeal by plaintiff from a judgment in favor of defendant and from an order denying a motion for a new trial in an action in ejectment, to recover possession of a strip of land six and three-quarters inches in width with a uniform depth of fifty-seven feet six inches.
Plaintiff alleges in his complaint that on the first day of May, 1906, and for more than thirty years next prior thereto, he had been the owner and seised in fee and entitled to the possession of the six and three-quarters inches described in his amended complaint; that on said date the defendant unlawfully ejected him therefrom, and has ever since withheld and still wrongfully withholds possession thereof from him, to his injury and damage in the sum of $1,000, for which sum, together with the alleged value of the rents, issues and profits, he prays judgment.
The defendant filed an answer; the cause was tried and the court held against plaintiff and decided that he was never in possession of said strip of land.
Defendant contends that the evidence is insufficient to support the findings.
Ever since the year 1864 plaintiff has been the owner and has held the record title to a certain twenty foot lot on the
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east line of Stockton street north of Vallejo street in San Francisco. The defendant and his predecessors in interest have owned and held the record title to the land adjoining both sides of plaintiff’s lot since 1853. At the time plaintiff purchased his lot there was a building on it. Subsequently he put a brick foundation under the building on the northerly andi southerly side thereof. The building remained on the ground until the great conflagration in April, 1906, when it was destroyed by that fire. In the month following the defendant commenced to erect a building on his lot just north of plaintiff’s property. Plaintiff, evidently believing that defendant’s building overlapped his lot, wrote him to that effect, and informed him that he would resist any encroachment upon his property. Thereupon the defendant had a survey made of the properties, which showed that his building was within his lines, and he so notified the plaintiff. It was doubtless after this that plaintiff became convinced that his building which had been destroyed had encroached upon defendant’s lot, and being unable to induce defendant to accede to his demands, instituted this suit for the purpose of establishing title to the strip of land involved by adverse possession.
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