Mello v. Weaver

• Decision Date: 13 December 1950
• Citation: 224 P.2d 691,36 Cal.2d 456
• Parties: MELLO et ux. v. WEAVER. L. A. 21271.
• Court: California Supreme Court

Page 691

224 P.2d 691

36 Cal.2d 456

MELLO et ux. v. WEAVER.

L. A. 21271.

Supreme Court of California, in Bank.

Dec. 13, 1950.

George A. Moran and Fred J. Heid, Jr., Tulare, for appellant.

Louis J. Coelho, Fresno, for respondents.

SHENK, Justice.

The plaintiffs brought this action to quiet title and to establish a fence and canal located in a general north-south direction as the common boundary between their lands and the lands of the defendant on the west. The area in controversy is a strip one hundred feet wide along the east bank of the canal. The plaintiffs depended on proof to sustain alleged causes of action based on adverse possession and agreement to establish the boundary under the doctrine of agreed boundaries. The trial court found for the plaintiffs on all the issues and rendered judgment accordingly. The defendant appealed. The questions relate to the sufficiency of the evidence to sustain the judgment on either theory.

Since there is no evidence that the plaintiffs paid the taxes on any land except that called for by their record title, it must be concluded that there could be no support for a judgment based on adverse possession (Section 325, Code of Civil Procedure), unless the evidence supports the judgment which establishes the fence and canal as the boundary between the lands of the parties.

Both parties trace title to a common grantor. In 1881 the defendant's father, Leonidas Weaver, acquired a large portion of section 6 in township 20 south, range twenty-four East, M.D.B. & M. This acquisition included the fractional southwest quarter. In 1892 Leonidas granted to Tulare Irrigation District for canal purposes an easement in a forty foot strip running in a general north-south direction through that quarter section. A canal was constructed and was used and maintained by the District to serve water for irrigation purposes. A barbed wire fence was built along the west bank of the canal.

Leonidas Weaver died and his estate was distributed in 1913. In 1918 the defendant acquired from his mother two parcels of land, which in 1930 he sold to the plaintiffs. The lands are described in the plaintiffs' deed as: Parcel One, the Southeast quarter of the Southwest quarter of section 6, Township 20 South, Range 24 East, M.D.B. & M., containing 40 acres more of less; and Parcel Two, the East three acres of the Southwest quarter of the fractional Southwest quarter of section 6. In 1939 the defendant acquired from his mother the remaining land in the Southwest quarter of the fractional Southwest quarter.

In 1918 when he went into possession of Parcels One and Two the defendant occupied, irrigated and farmed the land to the east bank of the canal. At the time of the plaintiffs' negotiations with the defendant for the purchase of Parcels One and Two the canal and fence were indicated as the west boundary. When the plaintiffs went into possession and during their occupancy they irrigated and farmed the land to the east bank of the canal without objection by the defendant's motion or by the defendant after he became the owner of the adjoining land, until this controversy arose. In 1948 the defendant obtained a survey and a map which he introduced in evidence as a correct representation of the boundaries of the lands. This survey placed the west boundary of the plaintiffs' land 100 feet easterly from the canal. In 1948 when the defendant's attempted negotiations for the plaintiffs' purchase of the 100 foot strip failed, he took down the old fence, occupied the strip and began construction of a new fence 100 feet easterly from the canal which he discontinued when this litigation was commenced.

The judgment established the east bank of the Tulare Irrigation District Canal as the west boundary of the lands described in the deed to the plaintiffs. The defendant contends that the judgment is unsupported because there is no evidence of an agreement by coterminous owners which would establish the canal as the boundary between their properties; and that such an agreement may not be enforced in any event because, so it is claimed, there is also lacking any evidence of uncertainty in the boundaries of the lands as described in the deed.

The requirements of proof necessary to establish a boundary by agreement are well settled by the decisions in this state. See Hannah v. Pogue, 23 Cal.2d 849, 856-857, 147 P.2d 572, and Martin v. Lopes, 28 Cal.2d 618, 170 P.2d 881, where the numerous cases are collected. Mere agreement to locate a boundary known to be different from that called for by the deeds is insufficient, since such an agreement would be tantamount to a conveyance by parol, an unrecognized method of transfer of real property. Lewis v. Ogram, 149 Cal. 505, 87 P. 60, 10 L.R.A.,N.S., 610; Mann v. Mann, 152 Cal. 23, 91 P. 994; Clapp v. Churchill, 164 Cal. 741, 745, 130 P. 1061; Grants Pass Land & Water Co. v. Brown, 168 Cal. 456, 459, 143 P. 754; Staniford v. Trombly, 181 Cal. 372, 186 P. 599; Dauberman v. Grant, 198 Cal. 586, 592, 246 P. 319, 48 A.L.R. 1244. But as early as Sneed v. Osborn, 25 Cal. 619, where the position of the initial point in the description was uncertain, a division of land between coterminous owners as in accordance with the deed description, and mutual acquiescence in their practical location of the common boundary over a long period of time, was held to constitute the location of the true boundary as called for by the deed. The doctrine grew out of the need for stability and repose in the matter of titles to real property. Cavanaugh v. Jackson, 91 Cal. 580, 27 P. 931.

The agreement need not be express, but may be implied from long acquiescence. Hannah v. Pogue, supra, 23 Cal.2d 849, and cases cited at page 856, 147 P.2d 572. But since it is valid only for the purpose of settling an uncertainty in a common boundary, the implied agreement must have been based on a doubtful boundary line. Lewis v. Ogram, supra, 149 Cal. 505, 87 P. 60, 10 L.R.A.,N.S., 610; Clapp v. Churchill, supra, 164 Cal. 741, 130 P. 1061; Huddart v. McGirk, 186 Cal. 386, 199 P. 494. A dispute or controversy is not essential, Helm v. Wilson, 76 Cal. 476, 485, 18 P. 604; Thaxter v. Inglis, 121 Cal. 593, 54 P. 86, but it may be evidence of the existence of a doubt or uncertainty. Nor is it a requirement that the uncertainty should appear from the deed or from an attempt to make an accurate survey from the calls in the deed. The fact that an accurate survey is possible is not conclusive of the question whether a doubt existed as to the location of a common boundary. Thus the doubt may arise from a believed uncertainty which may be proved by direct evidence or inferred from the circumstances surrounding the parties at the time when the agreement is deemed to have been made, Clapp v. Churchill, supra, 164 Cal. 741, 745, 130 P. 1061; Roberts v. Brae, 5 Cal.2d 356, 54 P.2d 698; Board of Trustees of Leland Stanford, Jr., University v. Miller, 54 Cal.App. 102, 201 P. 952; Raney v. Merritt, 73 Cal.App. 244, 250, 238 P. 767; Todd v. Wallace, 25 Cal.App.2d 459, 77 P.2d 877; and if in good faith the parties resolve their doubt by the practical location of the common boundary it will be considered the boundary called for by the deed. Young v. Blakeman, 153 Cal. 477, 95 P. 888; Schwab v. Donovan, 165 Cal. 360, 132 P. 447.

The defendant's contention that there is no evidence supporting the finding as to uncertainty might have merit if there was no more than an assumption on the part of the plaintiffs that the canal and fence marked the west boundary. Cf. Clapp v. Churchill, supra. Here we have...