Allen v. Reed

By the Court, Rhodes, J.: Lot number three in the block bounded by N and O and Ninth and Tenth streets, in the city of Sacramento, lies to the east of and adjoining lot number two, in the same block. The party under whom the defendant claims title, being the owner of the west half of lot number three, erected a substantial fence around the same, on the lines which were pointed out to him by a surveyor as the correct lines. The western fence is eleven inches west of the true line dividing lot number three from lot number two. The defendant and [364]his grantors have had the continuous adverse possession of the strip of land cut off of lot number two by the fence from the year 1858 to the commencement of this action. The jfiaintiff acquired the title to lot number two by means of a deed executed by the sheriff, in pursuance of a sale of the lot, which was made by virtue of an order of sale, issued upon a judgment against it for delinquent taxes. The sale was made within five years next before the commencement of the action.

The tax-deed, its validity not being questioned, must be held to have conveyed to the grantee the title to lot number two; and the only inquiry is, where is the eastern boundary of that lot? The proposition of the defendant is that the erection and maintenance of the fence, and the adverse possession taken and held, in the manner and under the circumstances stated, operated as a conclusive establishment of the line dividing lot number two from lot number three, at and along the line of the defendant’s western fence—that the line thus established must be regarded as the true line, although it varies from the line of the official survey of the city. There is no ground upon which that proposition can be maintained. Whatever may have been the effect of the adverse possession upon the title to a portion of lot number two, there is no ground upon which it can be claimed that such adverse possession destroyed the identity of the lot, or in any manner changed its boundaries. The authorities cited by the defendant do not sustain that proposition.

Judgment affirmed.

Mr. Chief Justice Wallace did not express an opinion.