Moranda v. Mapes

FINCH, P. J.

This is an appeal by the plaintiffs from a judgment determining the northerly boundary line of land owned by them.

The court found that the plaintiffs’ predecessors in interest acquired title through a deed executed October 4, 1873, by John Durham to James Swaltney, which described the land as “lying southeast of the east bank of the Mormon Slough and containing 15.25 acres”; that “the south bank of Mormon Slough (referred to in said deed as southeast bank) as it then existed coincided with the following line,” describing the line fixed by the judgment as the plaintiffs’ northerly boundary line.

The defendant Mapes claims ownership of lands lying on the northerly side of the plaintiffs’ said boundary line, his

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predecessors in interest also having acquired title from John Durham. The court found that “neither the plaintiffs nor the defendant Clarence Wells Mapes nor Nannette Bollinger have acquired title by prescription, or otherwise” to the land in dispute, but that “the record title to said tract of land . . . has, at all times herein named and does now vest in Samuel Bollinger. . . . That the defendant Clarence Wells Mapes, for a period of more than five years immediately preceding the commencement of this action, has paid all taxes levied and assessed against” the lands in dispute, “the greater part of which is situated between the banks of Mormon Slough, as said banks now exist.”

The decree adjudges “that the defendants should be, and each of them is hereby forever enjoined and debarred from asserting or claiming any right, title, estate, lien or interest in and to” the land found by the court to belong to plaintiffs.

The complaint alleges that the plaintiffs are the owners of the land described therein, “lying southeast of the southeast bank of Mormon Slough,” and sets forth the boundaries thereof by courses and distances, the northerly boundary being given as a meander line along the south bank of Mormon Slough. The answer of defendant Mapes denies the particular description contained in the complaint and alleges, in substance, that the southerly boundary line of his land is the “south bank of Mormon Slough.” It thus appears that the only issue for the court to determine was the location of the south bank of Mormon Slough. The valuable part of the land in dispute is referred to as an island, above which Mormon Slough divides into two channels which unite again at the lower end of the island. The northerly channel is now a deep slough, while the southerly channel is shallow. There is a substantial and sharp conflict in the evidence as to which one of these was the original channel. Witnesses for the defendant Mapes testified that at a time thirty years or more before the trial the main slough ran south of the islanfi, and that at that time there was a fence in the approximate location of the plaintiffs’ northerly boundary as fixed by the judgment herein. As stated, the deed from Durham to Swaltney described the land thereby conveyed as containing 15.25 acres, while the land adjudged to belong to the plaintiffs contains 15.36