Manuel v. Kiser

• Decision Date: 07 November 1949
• Citation: 210 P.2d 918,94 Cal.App.2d 540
• Court: California Court of Appeals Court of Appeals
• Parties: MANUEL v. KISER et al. Civ. 7623.

Page 918

210 P.2d 918

94 Cal.App.2d 540

MANUEL v. KISER et al.

Civ. 7623.

District Court of Appeal, Third District, California.

Nov. 7, 1949.

Rehearing Denied Dec. 7, 1949.

Francis H. Frisch, Napa, Tom W. Hanrahan, St. Helena, for appellant.

David R. York, Palmer & York, Calistago, for respondents.

PEEK, Justice.

By his first cause of action plaintiff sought reformation of a deed dated February 13, 1923, by which the defendant Kiser as grantor conveyed to him certain real property near the city of Calistoga in the County of Napa. The basis for his claim being the alleged mutual mistake of said parties in the description of the property, and that Kiser intended to sell and he intended to buy certain property located partly within Lot I of section 32 and partly within lot 2 of section 32 but that because of said alleged mistake he received a deed wherein the property was described as being in lot I of section 32. His second cause of action was founded upon his alleged adverse possession of the property for the statutory period. The third cause of action was predicated upon his alleged prescriptive right to a spring arising on the land in question. The defendants Kiser and the Reeders jointly answered the complaint denying generally the allegations thereof and affirmatively alleging that the Reeders were the owners of said property by reason of a subsequent deed from the defendant Kiser; that plaintiff was guilty of laches; that Kiser and the Reeders would be prejudiced thereby; that plaintiff's action was barred by subdivision 4 of Section 338 of the Code of Civil Procedure since they allege he had full knowledge of all of the facts set forth in his complaint at the time of the execution of the 1923 deed. Lastly the Reeders, on their own behalf, affirmatively allege that by reason of an action filed by them on August 14, 1945 their title was adjudged to be free and clear of any claim of plaintiff and that said judgment is res judicata as to the questions raised in plaintiff's complaint.

At the conclusion of the trial the court found generally in favor of defendants and judgment was entered accordingly. Plaintiff's motion for a new trial was denied and this appeal followed.

Plaintiff's attack is directed primarily at the sufficiency of the evidence to sustain the findings, and in particular (1) that as the evidence relating to the property which was intended to be transferred was uncontradicted the court erred in finding that there was no mutual mistake in the execution of the original deed; (2) that since it also was uncontradicted that he had been in continuous possession of the property from the date of the execution of said deed the court erred in finding that he had not acquired a prescriptive right to the spring, and (3) that as Reeder's testimony conclusively showed his knowledge of plaintiff's use of the spring and possession of the property the court further erred in finding that plaintiff was barred by the proceedings instituted by the Reeders under section 749 of the Code of Civil Procedure.

The record shows without contradiction that plaintiff stated to defendant Kiser he desired to purchase certain property from her but only because of a spring which was located thereon and which was the only spring on said defendant's property. Said property adjoined that owned by the plaintiff and upon which he resided. Following their discussion concerning the proposed sale of the property a deed was prepared in words and figures as follows:

'All that certain real property situated in the County of Napa, State of California, bounded and described as follows, to-wit:

'Lot number One (1) in Section Number Thirty-two (32) Township Nine (9) North Range Six (6) West, Mount Diablo Meridian, containing Fourteen and 60/100 (14.60) acres of land, more or less.

'Being the same land and understood as as such, as being lands deeded by Amos Simmons and his wife, Martha Simmons to Lewis A. Birdsall, deeded July 11, 1881 in which deed the water on said land was particularly mentioned and are so particularly mentioned in this Deed and considered a part of the same.'

The deed was executed on February 13, 1923 and was recorded in the office of the County Recorder of Napa County on February 19, 1923. Shortly thereafter appellant expended considerable money in developing the spring. He tunneled under the spring, built a reservoir which was lined with concrete, and ran a pipe line from the reservoir to his house which is situated approximately 400 feet to the south of the spring. Plaintiff also fenced such portions of the property as were not too precipitous. It appears that except for the spring the land was practically useless and of small value.

The defendant Kiser testified that the plaintiff '* * * wanted a piece of land with some water on it, and I didn't know what piece of land the water was on'; that she did not 'know what piece of property that was on'; that the spring referred to was the only spring on her land that she 'knew of'; that if there was another she did not know it; that 'he got his own deed made out and I signed it.'

On July 5, 1945, more than twenty-two years after the execution and delivery of the first deed, the respondent Kiser by a second deed conveyed certain contiguous parcels of property, including that upon which the spring was located, to the defendants Reeders. Approximately one month after this conveyance the Reeders instituted an action under section 749 of the Code of Civil Procedure against 'All Persons Unknown' and on October 26, 1945 obtained a default decree quieting their title as against such unknown persons.

It further appears from the records of the Superior Court in and for the County of Napa, in which court said action was heard as a default, that there was no appearance on behalf of any defendant; that the service of process was by publication in a newspaper published in Calistoga and by posting at one place on the property, and that Lowell Palmer, one of the attorneys appearing for the Reeders was the only person called on behalf of the defendants.

The appellant, who was neither named nor personally served in said action testified in the instant case that although he had discussed the error in the deeds with the Reeders he did...