Redmond v. McLean

SHAW, J.

Action to quiet title, the complaint being in the usual form, and alleging that plaintiff was the owner and in possession of lot 31, block 2, of the Golden Bay Tract, as per map recorded in book 2, page 15, of maps, Los Angeles

[730]

County, California; that defendant, without right, claimed an estate or interest therein adverse to plaintiff. Defendant Della McLean, the appellant, answered denying that the plaintiff was the owner or in possession of the lot described in the complaint; and, as a further defense, asserted that she was the owner in fee simple of the easterly four feet of said lot 31, but asked no affirmative relief. At the trial, judgment went for plaintiff, from which and an order denying her motion for a new trial, defendant McLean appeals.

The sole question at issue upon the pleadings was whether plaintiff was at the time of commencing the action the owner and in possession of all or any part of the lot described in his complaint as lot 31, block 2, as delineated upon the map referred to. At the trial plaintiff, in support of his claim, testified that at the commencement of the action he was, and for a long time prior thereto had been, in possession of said lot 31, as delineated upon said map, under and by virtue of a deed whereby the grantors therein, describing the lot as in the complaint, conveyed the same to him. This evidence, uncontradicted, was sufficient as a

prima facie

showing to establish plaintiff’s right as against defendant to a decree quieting his title to the lot so described.

(Davis

v.

Crump,

162 Cal. 513, [123 Pac. 294];

De Noon

v.

Morrison,

83 Cal. 163, [23 Pac. 374].) In opposition to the case so made by plaintiff, defendant conceded that plaintiff, under the deed, was in possession of all of said lot, except a strip of four feet on the easterly side thereof, which defendant claimed to be in possession of by virtue of an agreement fixing the boundary line between the lots. Aside from any conflict in the testimony touching the question of possession, the evidence offered by defendant was wholly insufficient to establish any agreement fixing the boundary line. While both parties had caused surveys to be made and the surveyors had agreed upon a line, there is no evidence that plaintiff ever acquiesced in the line so established by these surveyors. There is some meager evidence as to a fence, erected by somebody undisclosed by the record; but it is not made to appear that the fence was erected in accordance with any agreement between plaintiff and defendant, nor is it shown at what time the fence was erected; indeed, from aught that appears to the contrary, it may have been erected the day before the trial. Upon the state of the record here presented, the court was