Chandler v. Hibberd

• Decision Date: 12 November 1958
• Court: California Court of Appeals Court of Appeals
• Parties: Dawn CHANDLER et al., Plaintiffs and Appellants, v. Frederick H. HIBBERD et al., Defendants and Respondents. Civ. 22335.

Page 133

332 P.2d 133

165 Cal.App.2d 39

Dawn CHANDLER et al., Plaintiffs and Appellants, v. Frederick H. HIBBERD et al., Defendants and Respondents.

Civ. 22335.

District Court of Appeal, Second District, Division 2, California.

Nov. 12, 1958.

As Modified on Denial of Rehearing Dec. 10, 1958.

Hearing Denied Jan. 7, 1959.

Hanna & Morton, Harold C. Morton, James M. McRoberts, John H. Blake, Los Angeles, Julien Francis Goux, Santa Barbara, for appellants.

Mortimer A. Kline, Beverly Hills, Edgar T. Zook and John E. Troxel, San Francisco, Joseph A. Ball and Clark R. Heggeness, Long Beach, for respondents Frederick H. Hibberd, Lorna W. Hibberd and Edgar T. Zook.

Griffith & Thornburgh, Laselle Thornburgh, Santa Barbara, M. F. Schade, O'Melveny & Myers, Sidney H. Wall, Rodney K. Potter, Richard B. Ragland, Louis

W. Myers, Los Angeles, for respondent Richfield Oil Corp.

FOX, Presiding Justice.

The basic question for determination in this case is the correct location of the common boundary line between two oil producing properties. Being aggrieved by the decision after an extended trial, ¹ plaintiffs have appealed from the judgment and from the order denying their motion to tax costs.

The properties in question are in the South Cuyama Valley oil field in Santa Barbara County. More specifically, they are the south one half of Section 25 and Section 36 of Township 10 North, Range 27 West, S.B.B. & M. The controversial line separates these two sections. Section 25 lies directly north of Section 36. Both sections are bounded on the east by the range line that divides said township from Township 10 North in Range 26 West. (See illustrative diagram below.)

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plaintiffs are the Superior Oil Company, herein referred to as Superior, as lessee, and the owners of the fee and royalty interests in the south half of Section 25. The defendants are Richfield Oil Corporation, herein referred to as Richfield, as lessee, and the owners of the fee and royalty interests in the whole of Section 36.

In their opening brief plaintiffs state their position as follows: 'It was plaintiffs contention that the true boundary line between Section 25 and Section 36 was lost. It was also plaintiffs' contention that the north boundary of Section 25 and south boundary of Section 36 could be relocated on the ground but that the distance between the north boundary of Section 25 and the south boundary of 36 was approximately 660 feet less than the distance specified in the official government plat.' Plaintiffs then contend that this longitudinal shortage of these two sections amounting to ten chains ² or 660 feet, should be apportioned equally between them. This would result in a boundary line approximately 330 feet south of a fence claimed as a dividing line by defendants. Thus the real purpose of this litigation is to establish the east-west line that constitutes the common boundary of the two sections. ³

When oil was discovered in the area the exact location of the boundary line became important. Superior, which had the south half of Section 25 under lease, employed one Myers to make a survey. The monuments marking the northeast and northwest corners of Section 25 were missing. Those corners were either obliterated or lost. Myers accepted as the north boundary of Section 25 an old fence known as the Caliente fence which had been erected by the owners of Cuyama Rancho, which adjoins township 10 North, Range 27 West on the east and north. This resulted in the asserted shortage of 660 feet in the northsouth boundary of Sections 25 and 36.

Plaintiffs' primary cause of action ⁴ is one to quiet title to the south half of Section 25 with a certain described boundary line which was determined by application of the principle of apportionment. Defendants denied the location of the boundary line contended for by plaintiffs and alleged the true boundary line to be north of that claimed by plaintiffs, at a location substantially the same as that finally determined by the court to be the true line. Certain defendants, among them Richfield and the Hibberds, ⁵ alleged affirmative defenses of agreed boundary, both on the theory of an actual agreement and one implied by acquiescence, and boundary by estoppel and adverse possession. ⁶

The court rejected plaintiffs' theory and claimed location of the boundary line and sustained the position of defendants as to its location on the basis that 'the agreed boundary and boundary by estoppel' established the controlling boundary between the parties to this action. The court made what might be termed a secondary or alternate finding by which it determined the true line to be one lying north of the so-called agreed boundary and particularly described it.

The pertinent portions of the judgment are these: '1. The boundary between Sections 25 and 36, Township 10 North, Range 27 West, S.B.M., as established by the controlling United States survey of said sections made by the United States Deputy Surveyor J. R. Glover, ⁷ is located along and upon a straight line passing through the following two points: * * * [here follows detailed description] and but for the existence of the agreed boundary and boundary by estoppel hereinafter established as the controlling boundary as between the parties to this action, said boundary established by said United States survey is the boundary between said Sections 25 and 36, and the boundary between the parcels of the respective parties.

'2. As between all the parties hereto, the boundary between Sections 25 and 36, Township 10 North, Range 27 West, S.B.M., and the boundary between the parcels of the respective parties, is a straight line passing through the following two points: * * * [here follows detailed description of the so- called agreed boundary which follows a certain fence known as the Johnston fence].' Plaintiffs challenge both portions of the judgment and argue that the evidence is insufficient to support the essential findings.

Sufficiency of the Evidence to Sustain the Findings Re Agreed Boundary and Boundary by Estoppel.

Plaintiffs persuasively argue that the finding of agreed boundary is not supported by the evidence because there was in fact no agreement upon the Johnston fence as a boundary line marker. With respect to paragraph 2 of the judgment, Richfield states: 'Defendants pleaded the defenses of agreed boundary, estoppel and adverse possession and submitted the evidence with respect thereto. * * * This defendant will not in this brief argue the sufficiency of the evidence to support those findings, for we are satisfied that the true boundary determination contained in Paragraph 1 of the judgment is a proper and just disposition of this case in view of this present appeal, and desire that such determination shall become effective.' This amounts to confession of error with respect to the finding of an agreed boundary. Hibberds and other owners of interests in Section 36 join plaintiffs in arguing affirmatively that the evidence does not support the finding of agreed boundary. This, of course, constitutes a confession of error.

The facts with respect to this issue may be briefly summarized. Beginning about 1920, Eugene Johnston was lessee of both Section 36 and the south half of 25. He used these properties for grazing cattle and for carrying on some farming. In 1938 he desired to erect a fence around Section 36 for the purpose of controlling his cattle and preventing other cattle from invading his grazing land. He had a survey made by one McGregor who started from the southwest corner of Section 36 and came to a monument about seven-eighths of a mile to the north which he thought to be the government marker and the northwest corner of Section 36. He then proceeded farther north to the Caliente fence and concluded it was located ten chains short of the true northwest corner of Section 25. Johnston reported these facts to the lessor of Section 36, Standard Investment Company. Mrs. Flora Overton, as executrix of the deceased owner thereof, was Johnston's lessor of the south half of Section 25. Through his wife Johnston wrote Mrs. Overton: 'That Mr. Johnston wanted to erect a fence to control his cattle--to prevent them from grazing on Section 25 until Mr. Johnson wanted them to--that was the object in building the fence; that if he made the fence one mile long it went about ten chains (660 feet) on her property--that Mr. Johnson wanted to notify her that it went on her property according to their surveys.' According to Mrs. Johnston's testimony she replied as follows: 'She (Mrs. Overton) told us to complete the fence to control the cattle and use posts from her junipers 'as long as he did not make a boundary line between the two properties, as long as he did not establish that line himself.'' Without further discussion the fence was built. After its completion Mrs. Johnston wrote Mrs. Overton advising her of that fact; she further testified that 'it was on her property as far as we knew and she knew at the time.' The evidence being undisputed does not support the finding of agreed boundary, for the simple reason that the fence was neither agreed upon nor intended as a boundary but was considered and understood as only a cattle barrier. On this point the statement of the court in Talmadge v. Moore, 98 Cal.App.2d 481, at page 484, 220 P.2d 588, at page 590, is apposite. The court there stated: 'Where, as here, the acquiescence in the fence was as a barrier and not as a boundary line, no agreed boundary line was established. [Citation.] Furthermore, an intention to accept the marked boundary as the true boundary must be shown. [Citation.]' See, also, Copley v. Eade, 81 Cal.App.2d 592, 593, 184 P.2d 698; Dauberman v. Grant, 198 Cal. 586, 592, 246 P. 319, 48 A.L.R. 1244; Southern Counties Gas Co. of California v. Eden, 118 Cal.App. 582, 585, 5 P.2d 654; Pedersen v. Reynolds, 31 Cal.App.2d 18, 25,...