Shelton v. Malette
| Decision Date | 07 September 1956 |
| Citation | 301 P.2d 18,144 Cal.App.2d 370 |
| Court | California Court of Appeals |
| Parties | Henry Wood SHELTON et al., Plaintiffs and Respondents, v. Jeanie MALETTE et al., Defendants and Appellants. Civ. 5409. |
W. E. Starke, San Diego, for appellants.
Sloane & Fisher, San Diego, for respondents.
This is an action to determine boundaries and to quiet title. On March 10, 1922, one Jessie M. Lockhart conveyed lots 3, 5, 6, 7 and 8, in section 7, township 14, range 4 east, S.B.M., on Cuyamaca Mountain in San Diego county, to one A. B. Tahar. In October, 1922, Tahar obtained a survey of this property by a licensed surveyor, Percy L. Day, and a map of the property involved was prepared by him for Tahar's use. On or about November 14, 1922, A. B. Tahar conveyed to one George S. Gay said lots 7 and 8, according to the said survey made by Percy L. Day in October, 1922, and all of said lots 3 and 6 lying north of the meandering creek bed running through said lots, described by metes and bounds. In 1923 Tahar conveyed to George A. Malette a portion of lot 6 of said land which was described in the deed as commencing at a point on the south line of lot 6 where a small creek interests same; thence north along said creek to its intersection with a road north of Rocky Hill; thence west along said road to the west line of said lot 6; thence south along said west line to its intersection with the south line of said lot marked by a post in a stone mound; thence along said south line to the point of beginning.
In 1928 the plaintiffs became acquainted with A. B. Tahar and visited his mountain property. The Sheltons and Tahar became very close friends and in 1929, when the Sheltons were on the Tahar property, Tahar showed them the Day survey map and told them that they were to have lot 3 as shown thereon. He pointed out the boundary of this lot to the Sheltons and directed their attention to a barbed wire fence which he said was the boundary line between the property they were to have and the property which he had theretofore deeded to George Malette. The Sheltons paid $1,800 to Tahar and he agreed to execute his will leaving them the property. They built a cabin on it, ran a pipe line to a spring and occupied the property pointed out to them by Tahar actually, notoriously and uninterruptedly until the spring of 1951, at which time the defendants caused a fence to be erected approximately 450 feet west of and parallel to the fence pointed out to the Sheltons by Tahar as being the boundary line between his property and that theretofore conveyed to Malette. The area between these two fences is the property in dispute here and is shown on a map in evidence prepared by Daniels, Brown and Hall (Defendants' exhibit I).
In 1936 section 7, township 14 south, range 4 east, S.B.M., was surveyed by one Dupree Averill, a United States surveyor, and he prepared a map (Plaintiffs' exhibit 5) in which the boundary line between lots 3 and 6 did not correspond to the boundary line shown on the Day map and pointed out to the Sheltons by Tahar.
On July 21, 1931, Tahar executed his will in which he left to George A. Malette 'My remaining interest in Lots Five (5) and Six (6), Section Seven (7), Township Fourteen (14) South, Range Four (4) East, S.B.M.' The will further provided as follows:
Tahar died in 1938 and letters testamentary were issued to George A. Malette on May 27 of that year. On January 27, 1939, an order for partial distribution was made in the estate of Tahar distributing
In the trial herein it was stipulated and found by the court as follows:
'Upon trial defendants expressly disclaimed any right, title or interest in lands in Section 7, Township 14 South, Range 4 East, SBM, lying westerly of such division fence, until January 27, 1939, and confined their claims to those which arose under Order for Partial Distribution on said date in the Matter of the Estate of A. B. Tahar, deceased, Probate No. 25535 in the Superior Court of San Diego County, California.'
Plaintiff Henry Shelton testified that he and his wife paid taxes on their property first in 1931 and 1932 to Tahar and later to George Malette and finally they paid 'direct'; that in 1926 Tahar pointed out to him and to his wife the boundary of lot 3, both as shown on the Day map and on the ground, and told them that the property which he was showing them was what they were to have; that Tahar pointed out to them the barbed wire fence and stated that that was the east boundary line of their property; that remnants of this fence were still on the property at the time of trial; that George Malette died June 6, 1949, and that during his lifetime he made no assertion of any right to change the said boundary line fence and acquiesced in it as the true boundary line between his property and that of the plaintiffs.
The trial court found, in substance, that all of the allegations of the plaintiffs' complaint were true; that def...
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