Cottle v. Gibbon

• Decision Date: 05 February 1962
• Citation: 200 Cal.App.2d 1,19 Cal.Rptr. 82
• Court: California Court of Appeals Court of Appeals
• Parties: William W. COTTLE, Plaintiff and Appellant, v. Katharine C. GIBBON, Defendant and Respondent. Civ. 6666.

Page 82

19 Cal.Rptr. 82

200 Cal.App.2d 1

William W. COTTLE, Plaintiff and Appellant, v. Katharine C. GIBBON, Defendant and Respondent.

Civ. 6666.

District Court of Appeal, Fourth District, California.

Feb. 5, 1962.

Best, Best & Krieger, Arthur L. Little-worth and Glen E. Stephens, Riverside, for appellant.

Thompson & Colegate, and Don C. Brown, Riverside, for respondent.

,COUGHLIN, Justice

Basically, the issues on this appeal relate solely to the sufficiency of the evidence to sustain the findings of the trial court in favor of the defendant, the respondent herein. The plaintiff, who is the appellant herein, contends to the contrary, claiming that the judgment against him is the result of a misconception of the law, but this contention is without merit.

The plaintiff and defendant are brother and sister respectively; own adjoining ranches; and are litigating a boundary dispute arising out of such ownership. The properties in question, which are referred to as the 'upper' ranch and the 'lower' ranch, at one time were owned, respectively, by persons named Johannsen and Miller; later were acquired from them by the father and an aunt of the plaintiff and defendant; and subsequently were transferred by the father and the aunt to them. This transfer conformed to a partition agreement between the plaintiff and defendant, previously executed in contemplation thereof, which provided, in substance, that the plaintiff should acquire the property referred to as the 'lower' or Miller ranch, and the defendant should acquire the property referred to as the 'upper' or Johannsen ranch. The legal descriptions used in both the partition agreement and the deeds to plaintiff and defendant conformed to the legal descriptions used in the deeds by Miller and Johannsen to the father and aunt.

A controversy respecting the location of the boundary line between these ranches preceded the present action wherein the plaintiff, who claims that a fence dividing a part of the property marks the true boundary line, seeks reformation of the partition agreement; a judicial determination that the fence line constitutes an agreed boundary line; and also that he has obtained title to the disputed area under the doctrine of adverse possession. Judgment was rendered in favor of the defendant and the plaintiff appeals.

Preliminarily it is proper to refer to some fundamental and oft-repeated rules. In a case tried without a jury, the trial judge is the sole arbiter of all conflicts in the evidence, conflicting interpretations thereof, and conflicting inferences which reasonably may be drawn thereform; is the sole judge of the credibility of the witnesses; may disbelieve them even though they are uncontradicted if there is any rational ground for doing so; and, in the exercise of a sound legal discretion, may draw or may refuse to draw inferences reasonably deducible from the evidence. (Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868; Church of Merciful Saviour v. Volunteers of America, 184 Cal.App.2d 851, 856-857, 8 Cal.Rptr. 48.) When the sufficiency of the evidence to sustain a finding of fact is contested on appeal, the issue thus presented is whether there is any substantial evidence, direct or indirect, contradicted or uncontradicted, which will support the finding (Primm v. Primm, 46 Cal.2d 690, 693, 299 P.2d 231; Richter v. Walker, 36 Cal.2d 634, 640, 226 P.2d 593); it will be assumed that the trial judge resolved every factual conflict in favor of the prevailing party (Thomas v. Hunt Mfg. Corp., 42 Cal.2d 734, 736, 269 P.2d 12; Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689); and every inference reasonably deducible from the evidence which will support the finding must be accepted whereas those which will support a contrary conclusion must be rejected. (Hamilton v. Pacific Elec. Ry. Co., 12 Cal.2d 598, 602, 86 P.2d 829; Wilbur v. Wilbur, 197 Cal. 1, 7, 239 P. 332; Garland v. Hirsh, 74 Cal.App.2d 629, 636, 169 P.2d 405.)

The partition agreement in question was effected in November, 1941. At this time the two ranches, which had been purchased in 1936 from Johannsen and Miller, were owned by the plaintiff's and defendant's father and aunt. At the time of this purchase, a fence 1000 feet in length, which had been erected many years before, extended southerly from the north line of the property along but actually east of the north-south boundary line between the two ranches. The overall length of this boundary line approximated 2300 feet. According to undisputed evidence, the northerly part of this fence was 123.57 feet east of the true north-south boundary line, and an extension thereof to the southerly line of the property would have placed it 70.08 feet east of the true boundary at the latter point. After the ranches were purchased from Johannsen and Miller, the father operated them as a single unit, and during this time removed all but the northerly 300 feet of the fence in question. In 1941, prior to their execution of the partition agreement and in contemplation of the transfer of the property to them, the plaintiff and defendant entered upon extensive negotiations, involving discussions over a period of months, respecting a division of the property between them. At one point in these discussions both parties indicated their desire to have the 'upper' ranch. Later, following concessions by the defendant which need not be related here, it was agreed that she should have the 'upper' ranch and the plaintiff should receive the 'lower' ranch. In the partition agreement eventually executed, the property to be transferred to the defendant was referred to as parcels 1 and 2, and was described in accord with the legal description used in the Johannsen deed, while the property to be transferred to the plaintiff was referred to as parcel 3, and was described in accord with the legal description used in the Miller deed. In the course of his testimony relating the discussion between the parties with respect to the two ranches, the plaintiff testified that the 'upper' ranch referred to parcels 1 and 2 and the 'lower' ranch referred to parcel 3. The defendant testified that in discussing a division of the property she, her brother, and her husband referred to it as the 'upper' ranch and the 'lower' ranch, and as parcels 1, 2 and 3 as used in the partition agreement; that parcels 1 and 2 were the 'upper' ranch, and parcel 3 was the 'lower' ranch; that the property was divided by legal descriptions; that 'we didn't know where those descriptions went and neither did my father'; and that in referring to the 'upper' ranch she meant 'Just the top of the hill where we used to take a walk, and there was some hay fields and then there were a whole lot of hills and nobody knew where the line went.'

The plaintiff claims that he and his sister executed the partition agreement under the mistaken belief that the fence in question marked the common boundary which separated the 'upper' and the 'lower' ranches, which entitled him to reformation of the agreement accordingly; that, even though reformation is not in order the judgment should have been in his favor under the doctrine of agreed boundaries, because the evidence in the case required a finding that the location of the common boundary was uncertain and that he and his sister agreed that the fence line was the common boundary line; and that, in any event, he had acquired title to the disputed strip of property by adverse possession.

In substance, the trial court found that the parties did not execute the partition agreement under a mutual mistake of fact as to the location of the common boundary between the 'upper' and the 'lower' ranches; that they did not agree to the location of that boundary line; and that the plaintiff did not acquire the disputed strip by adverse possession.

The written findings of fact fully support the judgment in favor of the defendant and, in turn, under the rules heretofore related, are fully supported by substantial evidence. We state this conclusion after a review of the whole record and the parties' contentions with respect thereto, but without setting forth our analysis thereof, which is without the scope of our obligation in the premises. (Fomco, Inc. v. Joe Maggio, Inc., 55 A.C. 162, 165, 10 Cal.Rptr. 462, 358 P.2d 918; Edwards v. Container Kraft Carton etc. Co., 161 Cal.App.2d 752, 756, 327 P.2d 622.) Nevertheless, it is proper to note that in his attack upon the sufficiency of the evidence, the plaintiff brushes aside testimony which he describes as 'simply not credible' or 'hardly credible'. Decisions respecting the credibility of witnesses and the acceptance of or weight to be given their testimony, unless obviously false or inherently improbable, are not subject to review on appeal. (Bennett v. Chandler, 52 Cal.App.2d 255, 261, 126 P.2d 173.) The testimony referred to by the plaintiff is neither obviously false nor inherently improbable. In similar vein, the plaintiff claims that the testimony by the defendant which supports...