Hess v. Merrell

MARKS, J. This is an appeal from a judgment quieting plaintiffs’ title to property in Fresno County. The case in fact settles a boundary line dispute, insofar as the parties before us are concerned, to the dividing line between Lot 16 of the Eppinger Tract owned by plaintiffs, and Lot 28 of the same tract owned by Raymond R. Merrell and Gertrude A. Merrell, whom we will refer to as the defendants.

The Eppinger Tract was subdivided into acreage lots in 1907, and the map of the subdivision was duly recorded. Lot 16 is north of an adjoining Lot 28. The division line is clearly shown on the map as a meander line running near the edge of the general level of the district before it breaks downward to reach the level of the bed of Wahtoke Creek, a non-navigable stream. During ordinary flow the stream is about twenty feet wide but during high water may reach a width of sixty feet. The ground levels are about twenty-five feet above the bottom of the creek and the flow does not approach the crest of the banks or the country-side level north and south of the depression in which the stream flows. The evidence indicates that the southerly line of the ordinary flow of the creek between Lots 16 and 28 varies between one and two hundred feet from the crest on which the boundary line between Lots 16 and 28 runs. At another point on property to the west this distance is about 370 feet. The land between this line and the stream slopes downwards towards the north and is the property in dispute here. It consists of four or five acres: Crops of hay have been grown on it though the evidence indicates that its principal use is for pasture.

Defendants purchased Lot 28 in March of 1932. There was a fence, or at least a part of a fence, along the north boundary line. Mr. Merrell saw the original map of the subdivision on which the boundary lines were clearly marked as well as the flow of the Wahtoke Creek with a clearly indicated space lying between. He found the remnants of a fence along the creek bottom and rebuilt it. It washed out during high water and he finally reconstructed it from near the northeast corner of Lot 28, running thence westerly across the flow of the stream and thence generally southwesterly northerly of the creek bed. He testified that he built the fence across the stream so cattle pastured on both Lots 16 and 28 could get to water. He only claims ownership of the land to the center of the stream so it is clear that this fence was not intended to and [898]did not mark any actual or claimed boundary between the two lots. Rather it served as a barrier to stock ranging on them.