Wagner v. Meinzer

LENNON, P. J.

This is an action in ejectment. The complaint is in the usual form, alleging ownership and right to possession of the land described in the complaint to be in plaintiff and the withholding without right by the defendant.

The land sought to be recovered consists of a portion of a lot about eight feet in width by one hundred feet in depth, located in the Barman tract in the city and county of San Francisco. The defendant is the owner of the lot immediately adjoining the land of plaintiff on the north, his dwelling-house abutting on the northerly line of plaintiff’s land. Before this dwelling-house was erected defendant’s predecessor in interest caused defendant’s lot to be surveyed by the then city and county surveyor, and the house was erected within the lines delineated and marked by said surveyor, where it has continuously stood for the past twenty years. This litigation is the result of the mistaken boundary line established by said surveyor between these coterminous land owners.

Among other defenses, defendant pleaded the statute of limitations, claiming an acquiescence in the line so established and an actual possession of the land thereunder beyond a period sufficient to establish a title by adverse possession. Plaintiff concedes this fact, but contends that possession under such circumstances is not hostile or under a claim of title, and that the statute of limitations, therefore, avails him nothing.

We do not so understand the law. If one of two coterminous owners takes possession and claims title to the extent of his possession, he holds adversely, although he was induced to locate his possession through a mistake as to the boundary

(Woodward

v.

Faris,

109 Cal. 12, [41 Pac. 781].) As is said ■in the recent case of

Silva

v.

Azevedo,

178 Cal. 495, [173 Pac. 929 [, where there is a continued acquiescence in a line so fixed,

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