Board of Trustees v. Miller

FINCH, P. J.

The defendants were given judgment quieting their title to 39.85 acres of land in Butte County and the plaintiff appeals.

The plaintiff holds the record title to the southeast quarter of section 23 and the defendants have the record title to 150 acres of land in the southwest quarter of section 24 in the same township including all of the west half thereof. The land in dispute is approximately the east half of the east half of said southeast quarter. The trial court found in favor of the defendants on the issues of adverse possession and agreed boundary. Since the defendants have paid taxes in accordance with their record title only, it is conceded that the finding in favor of adverse possession cannot stand unless that of an agreed boundary is upheld. The question, therefore, is whether there is evidence to support the finding that the predecessors in title of the parties established such boundary line by mutual agree

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ment. There is no direct evidence of such an agreement and the question must, therefore, be determined from the conduct of the respective owners of the lands, viewed in the light of the surrounding circumstances.

It appears that the plaintiff’s lands, as well as those of the defendants, originally were a part of the Bosquejo Rancho. When this rancho was subdivided does not appear. As early as 1876 Wm. Howard and P. B. Fox had acquired the south half of section 24 and in the year 1881 Leland Stanford acquired some 4000 acres of the rancho, including the southeast quarter of section 23, that quarter being in the extreme southerly end of the tract.

The court found that about the year 1878 the predecessors in interest of the parties, being uncertain as. to the boundary line between their respective lands, mutually agreed upon the location thereof, constructed a substantial fence upon such agreed line, and that the respective owners of said parcels of land have ever since jointly maintained- and repaired such fence and recognized it as marking the true boundary line between their lands. The evidence shows without conflict that the fence stood in its present location as early as 1886 and that it then had the appearance of being ten or twelve years old; that as far back as any witness knew, the plaintiff and its predecessors have occupied the lands to the west of the fence and the defendants and their grantors those to the east; that many years ago the latter cleared the lands on the east side up to the fence and have thereafter cultivated the same, at one time having about half of the disputed strip in alfalfa; and that they have never been disturbed in their possession and use of such lands nor have their rights thereto been questioned prior to the commencement of this action. At all times the respective parcels of land have been assessed and the owners thereof have paid taxes thereon according to their record titles. In the year 1904 the plaintiff made a written lease to Geo. W. and Chas. Dicus, grantors of defendants, of the southeast quarter of section 23 and therein recited that the lands leased contained 100 acres, more or less. This lease was renewed from year to year up to 1913. The actual area west of the line claimed by the defendants is about 112 acres. A growth of timber covers the lands to the west of the fence and such lands