Cummings v. Laughlin

HENSHAW, J.

The question here presented is over the title to a disputed strip of land lying between the holdings of plaintiffs and defendants. Plaintiffs asserted title by prescription and by agreement "settling a disputed boundary. The court’s findings were in favor of the plaintiffs upon both propositions, .against the answer and cross-complaint of defendants. Defendants appeal.

The following facts sufficiently present the controversy: In 1888 one Rogers was the owner of a tract of land containing, he thought, twenty-one acres (herein disregarding fractional acreage). It was known as lot 13 of the Lick tract. He caused a survey to be made, dividing this lot into a southerly ten acres and a northerly eleven acres. Surveyor’s stakes indicated the boundary line and Rogers planted a row of fig trees along this line. In 1889 one O' Dea became the purchaser of the southerly ten acres by a deed calling for the southerly ten acres of lot .13, “said ten acres to extend back making the easterly and westerly lines equal distances from the center of Franklin avenue, and making it a rectangular piece.” No controversy arises over the location of the center line of Franklin Avenue, nor. of the easterly or westerly line of lot 13. This Southerly ten acres, therefore, can be and has been accurately delimited upon the ground. So delimited upon the ground, the easterly and westerly lines extend 657.38 feet north of the center, line of Franklin Avenue. But the line of the survey caused to

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be made by Rogers, which line, as has been said, was marked upon the ground by stakes and by a row of fig trees, was 19.41 feet south of the true line, and only 637.97 feet northerly from the center line of Franklin Avenue. Thereafter Rogers sold all of the rest of this lot 13, that is to say, all of the northerly portion of it, to one Stephens, by a deed of date October 4, 1892, which deed conveyed “the north eleven acres of lot 13, the south line thereof being parallel with the south line of lot 13 of the western subdivision of the Lick Tract.” The difficulty seemingly arises over a shortage in the acreage of lot 13. If the southerly proprietor is given ten acres, the northerly proprietor does not get his eleven acres, and, conversely, if the northerly proprietor is given his eleven acres, the southerly proprietor does not get his ten acres, and hence this controversy over the strip nineteen feet wide and 662.64 feet long.