Western Union Oil Co. v. Newlove

SMITH, C.

This is a suit to quiet title to a strip of land containing 54.97 acres, described in the complaint. Defendants had judgment, and plaintiff appeals from the order denying its motion for a new trial. The plaintiff, under a lease from Careaga to its assignor of date March 14, 1900, is lessee for a term of years of a tract of land owned by Careaga since about the year 1882. The defendants are the executors, widow, and devisees of John Newlove, deceased, who became the owner of the tract adjoining the Careaga tract on the north about the year 1880.

There is a fence on or near the common boundary between the two tracts, which was erected by Careaga in 1888. But it is claimed by the plaintiff that the true boundary is from 2.80 to 3.44 chains to the northward; and the land in controversy is the strip lying between this line and the fence.

It is claimed by defendants in their answer that in the year 1888, there being some controversy about the boundary, there was an agreement between Newlove and Careaga fixing the line where the fence was shortly afterward erected by the'latter, and that this fence has ever since been acquiesced in by the owners of both tracts as the boundary. It is also claimed that it was part of the agreement that Newlove upon inclosing his land should pay half the cost of the fence; and accordingly the agreed one half value of the fence, two hundred and fifty dollars, was in the year 1898 paid to and accepted by Careaga.

[774]

On the issues thus raised the findings of the court are for the defendants. The court also finds “that plaintiff’s alleged cause of action is barred by laches”; and “that plaintiff is estopped from claiming that said fence-line is not the dividing-line between the said lands in which it has an estate for years and the lands of defendants. ’ ’

The points urged by appellant’s counsel are: 1. That the court erred in ruling that Careaga could be examined as to statements made by him as to witnesses Tunnell and Martin subsequently to the date of Careaga’s lease to plaintiff’s assignor, and also in permitting Tunnell and Martin to testify to such declarations; 2. That the court also erred in excluding the declarations of Careaga in his own favor concerning the boundary of the Careaga ranch; 3. That the evidence was insufficient to justify the finding as to laches, or (4) as to estoppel; and 5. That the third finding conflicts with the findings from the fourth to the eleventh.