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District Court of Appeal, Third District, California.

MARTIN et ux. v. LOPES et ux.

Civ. 7174; Sac. 5730.

Decided: December 21, 1945

Gilbert Moody, of Turlock, for appellants. Preston, Braucht & George, of Merced, for respondents.

The defendants and cross-complainants have appealed from a judgment quieting title to real property in plaintiffs.

The plaintiff, John C. Martin, and his brother Frank were joint owners of the East half of the Southeast quarter of Section 28, Township 5 South, Range 11 East, M.D.B. and M., consisting of 80 acres of farm land in Merced County. They purchased the land from the Commercial Bank of Turlock, February 19, 1924, and farmed it jointly, as copartners, for eight years. In 1932 they agreed to sever their interests and to divide the ranch equally between themselves. They employed a surveyor, divided the cost of his services and personally assisted him in running the lines. The surveyor marked the lines by driving stakes at the corners, but inadvertently placed them in the ground 20 to 30 feet on Frank's portion of the land. Believing that the stakes marked the proper lines, the brothers then constructed fences along the lines marked by the stakes, and thereafter occupied and cultivated their respective portions to the fence lines for more than eight years without knowledge that the fence lines did not conform to the surveyed descriptions. They assumed the fences marked the correct division lines in accordance with the descriptions prepared by the surveyor. No controversy between the brothers ever occurred in that regard.

When the surveys were completed, in accordance with their agreement to divide the ranch equally between them the brothers and their wives conveyed the 80 acre ranch to Pearl Polley on February 29, 1932. She was a mere intermediary through whom the titles were conveyed. On the last-mentioned date Pearl Polley deeded to Frank C. and Olga A. Martin the southwesterly 40 acres of the ranch described as follows: ‘Beginning at a point 544.7 feet West of the true southeast (SE) corner of Section 28, Township Five (5) South, Range Eleven (11) East, Mount Diablo Base and Meridian, Merced County, California, thence North 2254 feet, thence west 788.5 feet, thence South 2254 feet, thence East 779.3 feet to the place of beginning and containing 40.3 acres of land, more or less.’

On the same date Pearl Polley deeded to John C. and Mary D. Martin the following described tract: ‘Beginning at the true southeast (SE) corner of Section Twenty-eight (28) Township Five (5) South, Range Eleven (11) East, Mount Diablo Base and Meridian, Merced County, California, thence North 2640 feet, thence West 1349 feet, thence South 386 feet, thence East 788.5 feet, thence South 2254 feet, thence East 544.7 feet to the place of beginning, and containing 40.3 acres of land, more or less.’

June 17, 1941, for a valuable consideration, Frank C. Martin, then a widower, conveyed to his daughter Mary, and her husband, Joe R. Lopes, the appellants herein, his 40 acre tract described in exact accordance with the deed to him and his wife. Thereafter Mr. and Mrs. Lopes occupied and cultivated that land to said line fences.

The Lopes tract is adjacent on the west to the east lines of separate properties owned by J. J. Moran and Arthur C. and Eva May Rapp, respectively. In 1943, W. E. Bedesen, County Surveyor of Merced County, made a survey, at the request of Mr. Rapp, of all the quarter section of land in question. He testified that he found all four true section corners marked by monuments, from which he took his courses and distances, and ascertained that the fence which encloses the Lopes property does not conform to the description, location or distances stated in the deed from Frank Martin. For instance, Mr. Bedesen said that the actual distance from the monument which he found at ‘the true southeast corner of section twenty-eight,’ from which the first course of the Lopes deed was figured, to the southeast corner of the Lopes property, where the fence stands, is actually 555.19 feet instead of only 544.7, as that deed states. That would place the southeast corner of the Lopes property over 10 feet east of the fence at that point. The county surveyor also stated that the Lopes fence on his westerly side overlapped the Rapp property more than twenty feet. That may be immaterial in this action. Mr. Rapp is not a party to this suit. The surveyor communicated those erroneous descriptions to Mr. Lopes, who then, for the first time, claimed that he owned the strip of land some 20 feet in width east of the fence intervening between his property and that of the plaintiffs. Lopes dug a ditch along that disputed strip and claimed the property. This suit was commenced by plaintiffs September 23, 1944, to quiet title to all of that portion of the original 80 acre ranch formerly owned by the Martin brothers, which is located east and north of the fences enclosing the Lopes property. The plaintiffs' property is described in the complaint by metes and bounds, with reference to the existing fences. The measurements contained in plaintiffs' complaint conform to the map which was prepared by the County Surveyor in 1943, which was received in evidence. It discloses the errors which occurred in the survey made by the Martin brothers.

The defendants answered the complaint, denying the material allegations thereof. They also filed a cross-complaint asking to quiet title to land described as: ‘Beginning at a point 544.7 feet west of the true Southeast corner of Section 28, Township 5 South, Range 11 East, Mount Diablo Base and Meridian, Merced County, California, thence North 2285.4 feet; thence West 788.5 feet; thence South 2296 feet, thence East 779.3 feet to the place of beginning.’

Upon trial, both Frank and John Martin testified to the division of their 80 acre ranch by agreement as previously related, together with the building of the fences and subsequent possession and use of their respective tracts. The map of the quarter section containing the measurements of property lines, prepared by W. E. Bedesen in 1943, was received in evidence, and its accuracy confirmed by his testimony that the measurements were true and correct. There is no conflict of evidence regarding the true measurements. It is uncontradicted that the deeds to the two brothers do not conform to the lines upon which the fences were constructed.

Upon that evidence the court adopted findings determining that the allegations of the complaint are true; that the allegations of the answer and cross-complaint in conflict therewith are untrue; that the two brothers who were joint owners of the 80 acre tract ‘agreed to divide the property between themselves' and ‘being uncertain as to the line between their agreed parcels' executed deeds and built fences and occupied and used their respective tracts in conformity with the fence lines. The court definitely determined that ‘the true and agreed boundary line’ is established by the fences which were built and recognized as the property lines for more than the statutory period of five years.

Judgment quieting title in plaintiffs was thereupon rendered. The judgment does not specifically refer to the cross-complaint. That is, however, immaterial since the findings which were adopted are adverse to the defendants on every essential issue presented by the cross-complaint, and the judgment affirmatively quiets title in plaintiffs and against the defendants. No issue presented by the cross-complaint is left undecided. There is no merit in appellants' contention that the court failed to determine the issues presented by the cross-complaint.

We are of the opinion the findings and judgment quieting title in plaintiffs to their land to the division fences on the north and east boundaries of defendants' land are supported by the evidence. There is ample evidence that title to plaintiffs' land up to said fences was acquired by them, under the well-established rule in California, by agreement and acquiescence. There is satisfactory proof that Frank and John Martin were co-owners of the 80 acre ranch prior to 1932, and that they then agreed to separate their interests and divide the ranch; that, being uncertain of the proper dividing lines, they constructed fences between their separate allotments along lines indicated by stakes which were set by a surveyor whom they jointly hired and paid and that, for more than eight years thereafter those division fences were recognized and acquiesced in by the respective owners of the adjoining properties as the true boundaries, by occupying and cultivating the land and by claiming title to their respective parcels to those boundary fences. Deeds of conveyances to their respective parcels of land were executed by the brothers. Under the circumstances of this case, the brothers and their successors in title are estopped from asserting that the said line fences thus erected and maintained by agreement are not the true boundaries of their respective properties.

It is true that the court included in its findings a statement that plaintiffs ‘have had the open, notorious and exclusive possession and occupancy [of their land] and have paid all the taxes or assessments levied or assessed on said property.’ There may be an absence of evidence to show that plaintiffs paid taxes on the narrow strips of land adjacent to the division fences which were not included in the description of land contained in their deed. Pedersen v. Reynolds, 31 Cal.App.2d 18, 29, 87 P.2d 51. But that is immaterial since the court very fully and explicitly determined that plaintiffs acquired title to those disputed strips of land by agreement and acquiescence, as distinguished from title by adverse possession. Clearly this case was tried and determined on the theory of title by acquiescence, which does not depend upon payment of taxes on the disputed strip. Title to an agreed boundary line by acquiescence is an equitable doctrine which estops the parties and their successors in title from disputing title to land thus acquired. The reference in the findings to title by adverse possession, by the use of the foregoing quoted language, may be disregarded as surplusage. Other findings adequately support the judgment quieting title in plaintiffs on the doctrine of title by agreement and acquiescence.

The California decisions uphold the doctrine of estoppel, in support of title by acquiescence, under circumstances similar to the facts of this case. It has been held that the location of a division fence in accordance with stakes placed in the ground by a surveyor jointly employed by the parties, and the maintenance of that fence for more than five years as the true line, even though that line is subsequently discovered to be at variance with the descriptions of the parcels prepared by that surveyor, are nevertheless persuasive evidence of title by acquiescence. The intention of the parties, in that regard, is the controlling element.

When co-owners of land divide their property by deeds of conveyances for the purpose of separating their interests therein, and they are uncertain of the proper dividing lines, but mutually agree upon definite division lines upon which they construct and maintain fences acquiescing therein as the true lines for a period of more than five years during which they occupy and cultivate their respective parcels to the said division fences, they and their successors in title may, in the absence of fraud, be estopped from thereafter disputing such division lines. Silva v. Azevedo, 178 Cal. 495, 173 P. 929. The rule of title by agreement or acquiescence, under such circumstances, is the same which applies to similar titles by agreement between separate owners of contiguous real property where the owners are uncertain of the boundaries and agree to definite dividing lines upon which they build fences and thereafter possess and cultivate their respective parcels for five years or more to such fences, or construct valuable improvements on said portions, even though they were mistaken as to the true dividing lines. Numerous California cases and those from other jurisdictions recognize the last-mentioned rule. Hannah v. Pogue, 23 Cal.2d 849, 856, 147 P.2d 572; Park v. Powers, 2 Cal.2d 590, 599, 42 P.2d 75; Vowinckel v. N. Clark & Sons, 217 Cal. 258, 18 P.2d 58; Young v. Blakeman, 153 Cal. 477, 95 P. 888; 4 Cal.Jur., sec. 53, p. 427, and sec. 61, p. 439; 97 A.L.R. 58 note.

It is true that when the real boundary line between contiguous land owners is known to them, neither of them may acquire title by acquiescence beyond such line by merely building a fence upon the other's property and cultivating and claiming the land to that point. Moniz v. Peterman, 220 Cal. 429, 31 P.2d 353. Title to land by acquiescence is founded on an agreement when an uncertainty exists as to the true line.

For the purpose of acquiring title to real property by agreement or acquiescence, it is not necessary there should be an actual dispute between the parties regarding the true division line. It is sufficient if it appears that they were uncertain of the true line and therefore agreed to a designated and certain boundary upon which they construct a fence and occupy and cultivate or improve their respective properties to that division fence for more than the statutory period of five years. Moniz v. Peterman, supra; Price v. De Reyes, 161 Cal. 484, 119 P. 893; Todd v. Wallace, 25 Cal.App.2d 459, 77 P.2d 877; 4 Cal.Jur. 429, sec. 54; 8 Am.Jur. 804, sec. 82.

In the case of Silva v. Azevedo, supra, judgment for plaintiff, ejecting the defendant from a six and a half acre strip of land in dispute, was reversed. In 1908, the parties to that suit agreed that Azevedo would take a deed to 126 acres of land to be purchased by them, with a stipulation that they would subsequently divide it equally. Azevedo took title and executed a deed to Silva for the east half thereof. The Silva deed described his tract by metes and bounds. A fence was built by them on a line indicated by stakes driven in the ground to mark the boundary. The stakes did not conform to the description in the deed. The respective parcels of land were thereafter occupied and cultivated to the division fence by the respective parties for a period of six years. Later Mr. Silva discovered that the fence had been placed, by mistake, 70 feet over on his land. He then brought suit to eject Azevedo from that 70-foot strip. The trial court rendered judgment in favor of Silva. On appeal the judgment was reversed.

Azevedo claimed that, regardless of the mistake in locating the fence, and despite the discrepancy between the location of the stakes and the description contained in the deed, the fence was agreed upon by the parties as the dividing line between their properties, and that he therefore acquired title to the disputed strip by acquiescence, both parties having occupied and cultivated their respective tracts to the division fence for more than five years, and that Silva was estopped from disputing that boundary line. The Supreme Court so held. That is the exact situation in the present case.

The Silva appeal was based on facts comparable to those of the present case. It appears to be determinative of the issues in this action. The trial court in that case found ‘there was no uncertainty as to the location of the boundary line, and no agreement between the parties that the fence line should be taken to be the true boundary.’ The Supreme Court said, ‘We think, however, that these findings * * * are without support in the evidence.’ In the Silva case, the Supreme Court quotes with approval the rule with respect to titles of adjoining property owners acquired by agreement or acquiescence, found in Young v. Blakeman, 153 Cal. 477, 95 P. 888. Applying that rule to the facts of the Silva case, the court said:

‘* * * Before the execution of the deed from Azevedo to Silva the entire tract theretofore acquired by Azevedo had not been divided, nor had the boundary line between the east and west halves thereof been marked upon the ground; that Azevedo and Silva, acting jointly, engaged a surveyor to survey the tract, to divide the same into east and west halves, to furnish a particular description by metes and bounds of the east half for use in the deed to be executed, and to locate upon the ground, by means of stakes, the division line between the east and west halves. The surveyor made the survey and furnished the description, which was carried into the deed. * * * He also established a line of stakes upon the ground, but by mistake located these stakes too far to the east, thus throwing the disputed strip into the westerly subdivision of the tract. Neither Silva nor Azevedo knew of said mistake. The two joined in building a substantial fence on the line marked by the stakes, believing such line to be the true line called for by the deed. * * * It appears, further, that one-half of the surveyor's charge was paid by each of the parties, and that each contributed one-half of the money and the labor expended in the building of the fence.

‘On this state of facts, we think there was no room for any other inference than that the line indicated by the surveyor [by fixing the stakes on the ground] as the dividing line between the two holdings, and followed by the erection of a fence by the two parties, was agreed on by them as the true boundary.’ (Italics added.)

It is true that the determination of an uncertain boundary line between the owners of real property should be controlled by their intention with respect to its location. Miller & Lux, Inc., v. Secara, 193 Cal. 755, 762, 227 P. 171; Mammoth Gold Dredging Co. v. Forbes, 39 Cal.App.2d 739, 750, 104 P.2d 131; Machado v. Title Guarantee & Trust Co., 15 Cal.2d 180, 186, 99 P.2d 245; 4 Cal.Jur. 373, sec. 2. But the Silva case determines that, under the circumstances of this case, where the respective parties hire a surveyor and build a dividing fence on the line indicated by stakes driven in the ground by the surveyor and the owners thereafter use, possess, and cultivate their respective tracts to that party line fence for the statutory period of more than five years, the fence prevails as the agreed dividing line over the description contained in the deed, notwithstanding the variance in description or the mutual mistake of the parties in that regard. In the Silva case, the Supreme Court said: ‘When, then, acting upon the information so given them, they joined in the construction of a substantial fence on the line, and proceeded, respectively, to improve and cultivate up to the fence, the only theory upon which their acts can reasonably be explained is that they had agreed upon the fence line as the true location of the west boundary of the land conveyed to Silva. It is true that both were mistaken in believing that the line so fixed was the true line. But this does not prevent the application of the rule. Sneed v. Osborn, [25 Cal. 619]; Biggins v. Champlin, 59 Cal. 113.’

The foregoing decision of the Supreme Court leaves no room for doubt with respect to the conclusiveness of the title by acquiescence, under the circumstances of this case, notwithstanding the variance between the description of the land contained in the deed to John C. Martin and his wife, and the actual location of the fence upon the ground in accordance with the stakes placed by the surveyor employed by the brothers. The subsequent reference to and approval by the Supreme Court of the Silva case in Vowinckel v. N. Clark & Sons, supra, 217 Cal. at page 261, 18 P.2d at page 59, and in Moniz v. Peterman, supra, 220 Cal. at page 437, 31 P.2d at page 357, render the Silva case determinative of this appeal.

The authorities cited and relied upon by appellants on the subject of title by agreement or acquiescence are not in conflict with the Silva case. They are based on different facts which failed to show that the parties agreed to a definite dividing line between their properties. In those cases it was held the intention of the parties to accept the asserted division fences as the true lines was not established. The intention of the parties in that regard is the controlling element in establishing title by acquiescence.

The case of Janke v. McMahon, 21 Cal.App. 781, 133 P. 21, was a suit to recover possession of a disputed strip of land, and to quiet title thereto, on the doctrine of adverse possession, as distinguished from title by acquiescence. The elements of proof necessary to establish title by adverse possession are quite different.

The judgment is affirmed.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.

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