Sneed v. Osborn

By the Court, Rhodes, J. On the 19th of March, 1847, Salvador Vallejo conveyed to L. W. Boggs one square mile of land in Napa Valley, bounded as follows : “ Beginning at a point near the base of the mountain on the west side of Napa Valley, one half a mile in a southerly direction from where a small branch or brook enters the valley from the mountains, usually known as the Old Rhodare; thence running from the said point of beginning along a line parallel with the base of the mountains, in a northerly direction one mile; thence forming a right angle and running in an easterly direction one mile; thence making a right angle and running in a southerly direction one mile ; thence making a right angle and running in a westerly direction one mile to the point of beginning.” Vallejo conveyed to Harrison, on the 5th of April, 1847, one square mile of land, the only description of the boundaries being as follows : “ Bounded on the north by a certain tract of one square mile, which said Vallejo sold to L. W. Boggs, by deed bearing date the 19th day of March, A. D. 1847.” Subsequent to the deed, and about the last of April of the same year, Vallejo and Boggs went on the land, and caused a survey of the same to be made by Surveyor Ide, who set stakes at the southeast, the northeast and northwest corners, — 624 — and directed the parties where to set the stake at the southwest corner, at a certain distance north of where he had set the stake for the first station; and the southern, eastern and northern lines were marked. The position of the initial point is uncertain. Probably no two men would take the deed, and going on the land separately, fix upon the same place for the initial point, for the place where the creek enters the valley— the line where the hills terminate and the valley begins—is difficult of ascertainment, there being a gradual slope of the hills to the valley; and the “OldRhodare,” which the parties understood to mean rodeo grounds, is a tract which may include from a few acres to five hundred acres. In view of this uncertainty, the parties went on the land for the puipose of establishing the lines, and in the first place agreed upon a certain tree on the bank of the creek, as the initial point; but on the surveyor measuring thence south half a mile and setting the first station and running from thence the southern line, the parties, after some controversy as to the land to be included, agreed.that the first station should be set to the north such a distance, that the southern line should not cross Dry Creek-; and the lines were run and marked and corner stakes were set accordingly, the western line not being actually run or marked, but directions being given for setting the stake at its southern extremity, so as to accord with the southern line as run. At the time of the sale to Boggs, Vallejo owned the land adjoining the Boggs tract and the land adjoining the Harrison tract, and there can be no doubt, upon principle or authority, that under such circumstances, and considering the uncertain description of the deed, it was competent for the parties to locate the land, and establish the boundary lines between the tract conveyed and the remaining lands of the grantor. This could be done by them while the grantor owned, the adjoining land, and the lines thus fixed would be regarded as division lines established by the agreement of coterminous proprietors. To be effectual for any purpose, it must-be done while the parties owti the lands on both sides of the line they thus locate. If the square mile sold to Boggs had contained all the lands — 625 — that Vallejo owned in that place, Vallejo, after the sale of it, would have had no greater control over the location of the land than a stranger to the title. Harrison did not participate in'the Ide survey, and there is no evidence in the record, showing that he assented to or acquiesced in it in any manner. He owned the land south of the Boggs tract at the time of the survey, and was unaffected by any agreement respecting the lines of the Boggs tract, to which he was not a party. In 1852, the northwest quarter of the Harrison tract was conveyed to the respondent, and in 1853, there was conveyed to the appellant all of the southwest quarter of the Harrison tract, except ten acres in the northeast corner of the southwest quarter, which had been conveyed in 1852 to McNiel, who conveyed the same to the respondent in 1857. The respondent is in possession of the northwest quarter and the ten acre tract, and the appellant is in possession of the southwest quarter less the ten acre tract, measuring the land from the southern line of the Ide survey as the base. The respondent now claims that the Ide survey was incorrect ; that the southern line was run about six chains too far to the north; that upon the Harrison tract being surveyed and subdivided according to the true southern line of the Boggs tract, the northwest quarter and the ten acre tract will include two parcels of land within the northern part of the southwest quarter, as claimed and occupied by the appellant, of the width of six chains, and both together extending across the southwest quarter, and containing twenty-four acres. He-sued to recover the possession of the northwest quarter and the ten acre tract, and the Court found • for him, and gave judgment for the possession of the premises sued for. What we have already said indicates that we agree with the appellant in his first and second propositions, but that his third proposition, viz: that “ the agreed location must control, and should prevail,” cannot be maintained, because there is no evidence that Harrison or the plaintiff or those through whom he claims, joined in running the line in controversy, — 626 — or at the time it was run, directly assented to it, as established by the Ide survey. There is another consideration applicable to a part, at least, of the case, that counsel have not particularly urged, but which is of too much importance to be passed over without notice. In eighteen hundred and fifty-four, while McMel was the owner of the ten acre tract, and the appellant owned the residue of what he claims as the southwest quarter, the appellant directed a survey to be made of the ten acre tract, so that he might know where to build his fences, and the survey was accordingly made. It does not appear whether or not McMel was present, but he soon after the survey built his fences on the land as surveyed, and thereafter occupied the land until he sold it to the respondent, who since that time has held it as fenced by McMel, and the appellant has since the survey held the land adjoining it on the south and west. The record contains no evidence of any objection being made by McMel or the respondent, to the lines of the ten acre tract as surveyed and fenced, from the time of the survey to the commencement of this action in eighteen hundred and sixty. The acts of the parties might not amount to an agreement between them, to locate the tract as then surveyed, and it is unnecessary to consider them in that view; but do they not show an acquiescence by the parties in those lines as the division lines between the two tracts of land ? If they do show such acquiescence it will make no difference in the result that they acted in ignorance or under a mistake, as to the true northern line of the southwest quarter of the Harrison tract. The authorities are abundant to the point that when the owners of adjoining lands have acquiesced for a considerable túne in the location of a division line between their lands, although it may not be the true line according to the calls of their deeds, they are thereafter precluded from saying it is not the true line. The better opinion is that the considerable time mentioned in the cases must at least equal the length of time prescribed by the Statute of Limitations to bar a right of entry. (Jackson v. Ogden, 7 Johns. 238; Jackson v. Freer, — 627 — 17 Johns. 29 ; McCormick v. Barnum, 10 Wend. 104; Dibble v. Rogers, 13 Wend. 536 ; Adams v. Rockwell, 16 Wend. 285 ; Van Wyck v. Wright, 18 Wend. 157; Boyd’s Lessees v. Graves, 4 Wheat. 513.) There was sufficient evidence in the case to have justified the Court in finding that the parties and the respondent’s grantor had acquiesced in the practical location of the lines of the ten acre tract in such a manner and for such a time that they cannot now deny that those lines are the true division lines between their respective lands; and there being no conflicting evidence upon this point, the Court should have found for the appellant as to the ten acre tract. The evidence bearing upon this point, so far as it relates to that portion of the division line extending westerly from the ten acre tract, is very slight and unsatisfactoiy, arising probably from the reason that the case was not presented in the Court below in view of the proposition that we have been considering. And for the same reason, we do not undertake to say that the respondent has presented all his evidence, or fully made his case on this question, in regard to the ten acre tract. The appellant makes a further point that the Court erred in admitting the testimony of H. C. Boggs, concerning the declaration of Governor Boggs as to the boundaries of the Boggs tract, and we think it well taken. The objection was general —the ground being that it was incompetent and illegal testimony—and it would be the duty of the Court to overrule an objection thus taken, if the evidence was admissible for any purpose. The party objecting should lay his finger on the point of objection. (Martin v. Graves, 12 Cal. 243, and cases cited.) But here the witness stated that Governor Boggs was not then in possession of any of the land, and for that reason his declarations were not competent as evidence. (1 Phil. Ev. C. H. and E.’s Notes, 194, note 81.) The respondent contends that the admission of that evidence did not amount to an error, because the Court, in passing on the motion for a new trial, disregarded the evidence as immaterial. Such in fact was the case; but it was done by the — 628 — Court, on the theory that Vallejo and Boggs still adhered to the tree at the creek, as the initial point, and on which the location was made to depend, notwithstanding that on their running the southern line they agreed that the first station, as set for the southwestern corner, should be moved several chains north of where it was set, on measuring southerly the half mile from the tree ; and that all the lines were run and marked and the corners established in view of the fact, that the first station had thus been moved to the north. The evidence of the declarations of Governor Boggs might very properly be disregarded as immaterial, if it could be held that the initial point had been permanently fixed as contended for; but the whole survey contradicts the idea that the parties still regarded that as the initial point—and, in fact, the Ide survey could not have been made as it was, by beginning at the marked tree at the creek as the initial point. We cannot say that the Judge who tried the case disregarded this evidence because it was immaterial, or if so, that it was done for the same reason that the Judge who refused the new trial disregarded it; but if the cause was determined at the trial upon the theory announced, in deciding the motion for a new trial, the finding cannot be sustained, for the theory amounted in substance to the doctrine that Harrison, while holding his deed from Vallejo, was bound by the acts of Vallejo and Boggs in assuming and fixing upon the initial point—and a point, too, that was immediately abandoned by them, in running and making the lines and locating the corners. Judgment reversed, and the cause remanded for a new trial.