Kraus v. Griswold

• Decision Date: 09 March 1965
• Citation: 232 Cal.App.2d 698,43 Cal.Rptr. 139
• Court: California Court of Appeals Court of Appeals
• Parties: Laurence G. KRAUS and Joan F. Kraus, his wife, Plaintiffs and Appellants, v. William T. GRISWOLD and Ruth M. Griswold, his wife, Defendants and Respondents. Civ. 21921.

Page 139

43 Cal.Rptr. 139

232 Cal.App.2d 698

Laurence G. KRAUS and Joan F. Kraus, his wife, Plaintiffs and Appellants, v. William T. GRISWOLD and Ruth M. Griswold, his wife, Defendants and Respondents.

Civ. 21921.

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

March 9, 1965.

As Amended on Denial of Rehearing April 8, 1965.

Hearing Denied May 5, 1965.

[232 Cal.App.2d 701] Bernard Petrie, San Francisco, for appellants.

Charles L. Convis, San Rafael, for respondents.

BRAY, Justice. ^*

Plaintiffs appeal from a judgment quieting title and fixing a boundary line in favor of defendants.

QUESTIONS PRESENTED

1. Was there an agreement to establish a boundary line?

2. Did the Waite survey establish a boundary line?

3. Was a boundary established by practical location?

4. Adverse possession.

5. Denial of motion for new trial.

RECORD

Plaintiffs own Lot 17 and defendants own Lot 16 on Corinthian Island in Belvedere. The first cause of action in plaintiffs' complaint is based upon an alleged agreed boundary line by the predecessors of the parties. The second cause of action alleges adverse possession by plaintiffs and their predecessors of the area in question. The third cause of action incorporates the two first causes of action and alleges intention of defendants to build a carport upon the northeast corner of plaintiffs' property. The fourth cause of action alleges the establishment of a common boundary line by plaintiffs' and defendants' predecessors in interest. The court found in pertinent part that there was never any uncertainty in the minds of the predecessors of the parties as to the location of the boundary line, no agreement to fix such line, and no adverse possession of either lot by the other of the parties except that plaintiffs' residence encroaches slightly at two points on defendants' Lot 16, that plaintiffs' residence encroachment was done in good faith and is but a few inches, does not interfere with defendants' quiet and peaceful enjoyment of Lot 16, occasions no damage or detriment to plaintiffs, that the common boundary line is as located in 1957 by John C. Oglesby Engineering Company and described in the findings, and that it would be inequitable to remove the encroachment. Judgment was entered accordingly.

THE EVIDENCE

Both Lots 16 and 17 are irregularly shaped, narrow, hillside lots that front on Bellevue Avenue and slope steeply toward the water of the Bay. The subdivision map and deed indicate that Lot 17 has a frontage of 49 feet on the road and approximately 50 feet at an angle on the water; Lot 16, a 61 foot frontage on the road and 64 feet on the water. The line here in dispute is the approximately 106 foot long lateral constituting the eastern boundary of Lot 16 and the northwestern boundary of Lot 17.

Both lots were originally owned by Mr. and Mrs. Frederick Kelley. Mr. Kelley was the secretary for the Corinthian Island Company, the original subdivider. On August 11, 1933, the Kelleys conveyed all of Lot 17, except a 10 by 20 foot rectangle in the northwest corner, adjacent to Lot 16, to the Northern Counties Title Insurance Company. The title company held title for the benefit of Vincent Clark and Katherine Clark, his wife, under a holding agreement with them.

In 1937, the Kelleys conveyed to the Clarks the 10 by 20 foot parcel previously excepted. In 1939, the title company conveyed to the Clarks the rest of Lot 17 which the company had acquired in 1933 from the Kelleys. In 1961, Mrs. Clark conveyed a portion of Lot 17 to plaintiffs. After the death of her husband, Mrs. Kelley in 1946 conveyed Lot 16 to William A. and Irene Barbe Smith. In May 1962 the Smiths conveyed Lot 16 to defendants.

In 1934, when the Clarks began to build the home now occupied by plaintiffs, the Kelley house was already built with a concrete stairway on the southeast side of the house leading from the road to a concrete walkway that led to the Kelley dock. The Clark house with its 45 foot 6 inch width was a very tight fit on the 48 foot 4 inch width of the portion of Lot 17 on which the house was built. In 1935, the Clarks built several horizontal retaining walls running perpendicular to the common boundary between Lots 16 and 17: several above the house, between the house and the road, and one long high wall below the house near the water. The area between the retaining walls above the house was filled and terraced to create a level planting area.

By agreement with the Kelleys, the horizontal retaining walls were allowed to extend past the common lateral boundary, and connected to the stairway on the side of the Kelley house, in order to avoid the construction of a wall up and down the slope. This was to anchor the ends of the retaining walls and to give the Kelleys some level places to garden in the terraced area between the retaining walls. There was never any discussion between the Kelleys and the Clarks about the boundary. From then on, the occupants of both lots gardened in the terraced area.

When the Smiths bought Los 16 from Mrs. Kelley in 1946, nothing was said about the boundary and no survey was made. Because of the planting, there was no real separation of the properties, but the Smiths and Clarks knew that the boundary was in the terraced area. Although both parties gardened back and forth across the boundary line (there was no visible line), they generally confined most of their gardening to their own side of that line. After moving in the house in 1954, Mrs. Smith found the house plans. Mrs. Smith and her tenants used the stairs and concrete walkway to the dock.

After a preliminary survey in 1956 indicated some discrepancies in the location of the lateral boundary between the two lots, Mrs. Smith obtained the 1957 survey which indicated that: two corners of the Clark house on Lot 17 were on Lot 16; that a part of the concrete walkway to the Smith dock was on Lot 17; and that a part of the terraced garden area above the Clark house was on Lot 16. It is the line located by this 1957 survey which the court found to be the correct boundary line.

When plaintiffs bought Lot 17 from the Clarks in 1961 for $72,500, they relied on their deed and were not concerned about the location of the boundary so there was no discussion and no survey. Plaintiffs had lived in the neighborhood, knew both the Clarks and the Smiths, were familiar with the avarious properties and in 1960, as prospective purchasers, had viewed the Smith house on Lot 16.

Plaintiffs moved into the Clark house in March 1961. There was no discussion about the common boundary until June 1961, when plaintiffs protested the removal of a bush by Mrs. Smith's gardener in the terraced area. Mrs. Smith indicated that the bush was on her property and showed them the maps of the 1957 survey. Before selling her property to defendants, Mrs. Smith had informed them of the 1957 survey.

Plaintiffs and defendants first met in April 1962 after the defendants purchased the Smith house on Lot 16. The parties had several discussions concerning the construction of a mutual carport partially in the area here in dispute, but were never able to reach an agreement. Subsequently, defendants decided to build their own carport on the basis of the boundary shown by the 1957 survey and obtained a building permit. Defendants discovered that plaintiffs did not accept the boundary established by the 1957 survey when plaintiffs prevented the defendants' contractor from placing stakes for the construction of the carport shortly before this action was filed.

Plaintiffs contend that the court erred in quieting the respondents' title to the triangular piece of land in the terraced garden area along the lines of the 1957 survey as they claim that the boundary along the outer edge of the concrete stairway alongside the Kelley house was previously established by agreement, practical location or adverse possession. As all of plaintiffs' arguments are based on the alleged insufficiency of the evidence to support the judgment, our only function is to determine whether there is substantial evidence in the record to support the judgment.

1. Was there on agreed boundary?

The first question presented is whether the record supports the finding that there was no agreed boundary. The requirements of proof encessary to establish a title by agreed boundary are well settled by the decisions in this state. It is necessary to show that there was an uncertainty as to the true boundary line, an agreement, express or implied, between the conterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707, 336 P.2d 525; French v. Brinkman (1963) 60 Cal.2d 547, 551, 35 Cal.Rptr. 289, 387 P.2d 1; Mello v. Weaver (1950) 36 Cal.2d 456, 459-460, 224 P.2d 691; Fobbs v. Smith (1962) 202 Cal.App.2d 209, 214, 20 Cal.Rptr. 545). 'It is not required that the true location be absolutely unascertainable [citation]; that an accurate survey from the calls in the deed is possible [sic] [citation], or that the uncertainty should appear from the deeds [citation]. The line may be founded on a mistake. [Citation.]' (Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d at pp. 707-708, 336 P.2d at p. 528; Janes v. LeDeit (1964) 228 Cal.App.2d 474, 481, 39 Cal.Rptr. 559.)

The object of the rule confirming occupation according to an agreed line '* * * is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable'; and the rule not only binds the parties, but also their successors by subsequent conveyances. (Young v. Blakeman (1908) 153 Cal. 477, 482, 95 P. 888; Martin v. Lopes (1946) 28 Cal.2d 618, 623, 170 P.2d 881.) It is also established by the authorities that the line so agreed upon becomes in legal...