Tomity Corp. v. Sovkueff

STONE, J. Appellant and respondents own contiguous parcels of commercial property fronting on Blackstone Avenue in the City of Fresno, respondents’ parcel bordering appellant’s property on the south. In 1908 Garabed Oroian and his wife acquired the entire property in a single 20-acre parcel described as the northwest quarter of Lot 8 of Wolters Colony. The 20-aere parcel was bordered on the west by Blackstone Avenue and on the north by Shaw Avenue, title extending to the center of both roadways. In 1910 the Oroians deeded the south half of their property to respondents’ predecessors. Oroians retained the north half, bordered by Shaw Avenue, and that portion remained in the family ownership until distributed, one-half to appellant’s predecessor, by decree of distribution in the Estate of Garabed Oroian June 19,1950.

The controversy arises because the 1910 Oroian deed to respondents’ predecessors described the property as the south half of the entire parcel. Specifically, the question is whether the Oroians conveyed one-half of their property measured from the section line in the middle of Shaw, or one-half of the usable portion of their property commencing at the lot line at the edge of Shaw. Up until July 1961 the owners of both parcels accepted a line arrived at by dividing the width of the original parcel commencing at the center of Shaw Avenue.

Dr. Downing acquired the property on the north side of the line in 1952 and some time thereafter conveyed it to appellant corporation, of which he is president. In 1961 he notified respondents that the property should be measured from the edge of Shaw Avenue, rather than from the middle of the street, which would move the line 15 feet south on respondents’ lot, that is, 15 feet south of the line that had been accepted as the dividing line up to that time. This action followed.

Appellant’s case is bottomed on the following language in Earl v. Dutour, 181 Cal. 58, at page 60 [183 P. 438, 6 A.L.R. 1163]: “In the absence, therefore, of any circumstance [687]indicating that a more unusual and technical meaning of the word ‘lot’ was contemplated and intended by the grantor, it will be presumed that the grant of a fractional part or of a given number of feet of a certain lot or parcel of land conveys the given fractional part or number of feet of that portion of the lot or parcel of land which is set apart for private use and occupancy. ’ ’

The foregoing presumption in Earl v. Dutour, supra, is not conclusive. (Peake v. Azusa Valley Savings Bank, 37 Cal.App.2d 296, 302 [99 P.2d 382].) In Pierson v. Bradfield, 43 Cal.App.2d 519, the court faced a question similar to the one before us and summarized the law thus, at page 524 [111 P.2d 460] : “The case of Earl v. Dutour, supra, merely states that the facts there existing created a rebuttable presumption, and its applicability depended upon the particular facts of each separate ease. A rebuttable presumption may be rebutted by evidence opposed to it, and when the evidence is substantial a finding by the court thereon will not be disturbed on appeal (Duehren v. Stewart, 39 Cal.App.2d 201 [102 P.2d 784]).”