Calanchini v. Branstetter

The Court. — This is the second appeal in this case. The first (84 Cal. 249) was by the plaintiff from a judgment against him, in which a new trial was awarded. This appeal is by the defendant from a judgment against him, and from an order refusing him a new trial.

Upon the last trial, the court adopted the former find, ings of fact, adding one or two others. The evidence upon the first trial was, for convenience, read on the second trial, although there was some little additional testimony.

The facts of the case are substantially as stated in the opinion rendered on the former appeal. In some respects, however, they are presented in a different aspect, owing to the fact that the first appeal was by the plaintiff, and this is by the defendant. At the first trial, the facts were found generally as claimed by the plaintiff, but were held not to warrant a judgment in his favor. Defendant, being then respondent, could not object to the sufficiency of the evidence to sustain the findings, or bring up any evidence except such as related to the points made by plaintiff in his motion for a new trial. While, therefore, the opinion rendered upon the first appeal has become the law of the case, and will control here so far as it appears that the same points are presented upon the same facts, there are in. this appeal many questions not then considered, and some that were then passed upon are now presented in a new light. j

In 1882, the grantor of plaintiff, Chamberlin, was the owner of a tract of forty acres of swamp and overflowed land adjoining and south of a similar tract owned by [614]Baldwin, from whom defendant derives his title. The land was wet and thickly covered with brush, so that it was difficult to make an accurate survey of it. The boundary between the tracts was a quarter-section line. The owners of adjoining tracts of similar lands had fenced along what was believed to be this quarter-section line, and it was easy to determine about where the line, as fenced, would divide the said tracts if it were extended. Chamberlin, however, desiring to reclaim his land, caused a survey to be made, which located the boundary some eighteen or twenty rods south of the line indicated by neighboring fences. This was in July, 1882. Both Chamberlin and Baldwin were present when the survey was made. Ho marks or stakes or other evidence of the government survey were found on the line between these tracts. Chamberlin then stoutly maintained that the boundary indicated by the neighboring fences was the true boundary, while Baldwin claimed according to the survey. A compromise was then effected, and it was agreed that the line indicated by the neighboring fences should temporarily divide their possessions. The agreement was oral, and Chamberlin and°Baldwin differ materially as to its terms; from this difference this litigation has arisen.