De Escobar v. Isom

• Court: California Court of Appeals
• Writing for the Court: PEEK; ADAMS, P. J., and VAN DYKE
• Citation: 245 P.2d 1105,112 Cal.App.2d 172
• Parties: DE ESCOBAR et ux. v. ISOM et ux. Civ. 8006.
• Decision Date: 03 July 1952

Page 1105

245 P.2d 1105 112 Cal.App.2d 172 DE ESCOBAR et ux.
v.
ISOM et ux. Civ. 8006. District Court of Appeal, Third District, California. July 3, 1952.
Rehearing Denied July 24, 1952.
Hearing Denied Aug. 28, 1952.

[112 Cal.App.2d 173] Griffin & Cardozo, Modesto, for appellants.

Whitehurst & Logan, Patterson, for respondents.

PEEK, Justice.

Plaintiffs are the owners of the north half of Section 28, Township 6 South, Range 8 East, M. D. B. & M. Defendants are the owners of the south half of the same section. A dispute arose between them concerning the boundary of their respective properties and the ownership of a narrow strip of land along said boundary. The strip in question is approximately 12 feet wide at the westerly end and approximately 16 to 20 feet wide at the easterly end. As a result of the controversy plaintiffs filed a complaint by which they sought to restrain defendants from using the land embraced in said strip. Defendants answered denying the material allegations of the complaint, and by a cross-complaint sought to quiet title to the land included within the strip and to have the boundary line established. The case was twice tried. The first trial was before the late Judge

Page 1106

Hjelm, who died while the matter was under submission. The second trial resulted in a judgment for defendants on their cross-complaint. Plaintiffs have now appealed from that judgment, contending (1) that the boundary line as found by the trial court is not supported by the evidence, and (2) that the court in reaching its conclusion followed an inappropriate rule of law. From our examination of the voluminous record and the briefs of the parties it appears that neither contention is well founded.

Apparently because of litigation involving an early Spanish Land Grant (the Orestimba Rancho) which included part of the easterly portion of Township 6, two government surveys were made, the first by one Terrell in 1859, which covered all of section 28, and the second by one Dyer in 1861. The second survey included only that portion of the township wherein said Rancho was situated but did not include any part of said section 28.

The evidence disclosed by the record before us shows that between the two properties there was, and still is, a well-defined plow ridge and that until the same was removed in 1935 a fence had always been maintained along the west half mile of the ridge. If was also shown that the fence was in line with other fences in that area. When said fence was removed a post was placed at the midsection end. The parties continued to use the ridge as a roadway for the full [112 Cal.App.2d 174] distance between their properties, and in 1941 shared the cost of oiling it. From the date of the issuance of the first patents the record shows continual diverse ownership between the north and south halves of said section. The record also shows, without contradiction, that there is no trace presently visible of any of the monuments placed in said...