Merrill v. Hooper

OGDEN, J.,

pro

tem.

This is an appeal from a judgment quieting title to a triangular parcel of real property, improved with a huilding, situated on the northwest corner of Thirty-third and Hooper Avenues in the city of Los Angeles. The complaint is in the usual simple form, alleging ownership in fee in the respondent Lneile A. Merrill as her separate property. The answer denies ownership in respondents and alleges it to be vested in appellant. By way of affirmative defense the latter alleges therein that she has been in the adverse possession of the premises, under claim of title, for more than the five-year statutory period prior to the commencement of the action and that respondents’ cause of action, if any there were, was barred by the provisions of sections 318, 319 and 322 of the Code of Civil Procedure. A cross-complaint containing corresponding allegations was also- filed by appellant. The answer to the cross-complaint, in addition to denying the allegations

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thereof, likewise set up the same provisions of the Code of Civil Procedure in bar of appellant’s cause of action, if any-had existed. The trial court found in favor of the allegations of the complaint and answer to the cross-complaint and adversely to those of the answer and cross-complaint.

The parcel involved was originally part of a large tract of land granted by United States patent to one Dalton in the year 1873. One J. W. Hooper, the successor in interest of Dalton, granted the southern portion of this tract to one Shattuck, through whom respondents claim record title, and the northerly portion to one A. L. Hooper, through whom appellant claims the record title. The controversy, which has been of long standing, arises out of a dispute as to the correct location of the dividing line of said northerly and southerly portions so conveyed. The same point of beginning is referred to in both the conveyance from J. W. Hooper to Shattuck and from J. W. Hooper to A. L. Hooper, it being designated as the intersection of two line fences, which had, long prior to the present controversy, disappeared.

In an attempt to establish her record chain of title, appellant produced, at the trial, the testimony of a competent engineer, showing, pursuant to a survey made by him, the property in question to be included within the northerly portion of the original tract as conveyed to> her predecessor in interest. The survey made by this witness was, however, based upon the identification, by appellant to him, of the locations of the original monuments in accordance with her recollection thereof. Especially in view of the fact that the testimony of appellant at the trial was in sharp conflict with that of respondents, the trial court was therefore not bound by this evidence.