Cocking v. Fulwider

NOURSE, J.

Plaintiff sued to quiet title to a parcel of land containing approximately 0.83 of an acre situated in Mendocino County. For a second cause of action he sought an injunction to restrain defendants from removing a fence which he proposed to construct inclosing the parcel of land

[746]

in dispute. . He was denied relief upon both causes of action and has appealed upon a typewritten record.

The controversy arose over the obliteration of the original section corner of sections 7-8-17 and 18, which was marked by a wooden stake erected at the time of the survey in 1873. The evidence is that this corner post had rotted away many years ago, but that the corner had been recognized by the location of certain witness trees mentioned in the surveyor’s field-notes; that, in the year 1888, the adjoining property owners agreed upon the common boundary line with reference to these witness trees; that, for more than thirty years prior to the commencement of this action, the parties hereto and their predecessors in interest had acquiesced in this boundary line; that, for the greater portion of this period, a fence had been maintained on this boundary line and the land had been claimed and cultivated by the adjoining owners on each side of this fence; that, in the year 1906, when one of the witnesses came into possession of the land now owned by defendants herein, this boundary line was marked by “an old rail fence”; that this witness was in possession of the property in dispute for six years, during which time he maintained the fence along this line; that, some time thereafter, a new and substantial fence was erected on the same line which remained at the time of the trial; that, for more than eight years prior to the commencement of the action, the defendants’ predecessors planted eighty-five fruit trees on the parcel in dispute which the defendants maintained and cultivated during their entire possession.

The reason for the controversy between the parties is that, in the year 1917, a new survey was made of the section lines and, the surveyor in charge being unable to find the government corner of sections 7 and 18, re-established this corner at a point where he estimated it should have been in relation to other known corners. This point was about forty-six feet south of the fenced boundary line theretofore recognized by the adjoining owners, but, because of the survey, the plaintiff claimed that he was entitled to the strip of land lying north of this boundary line as indicated by a line drawn from the newly established corner.