Williams v. Giddens

Fish, C. J. 1. The evidence submitted in behalf of the applicants did not require a finding that the proeessioners had run and marked a. line between the adjoining lands of the applicants and the protestant where no boundary line had been previously located and established; and1 therefore the court did not err in overruling the motion of the protestant to dismiss the proceedings on the ground that the proeessionershad run and marked a new line. 2. “Where actual possession has been had, under a claim of right, for more than seven years, such claim shall be respected,” by the processioners in cases of disputed land lines, “and the lines so marked as not to interfere with such possession:” Civil Code, §3248. The provisions of this section being, according to some of the evidence submitted, applicable to the ease, the court orred in instructing the jury as follows: “If you believe from the evidence . . that [the protestant] had the-exclusive and continuous possession of this property to the line which, he claims, and that it is the true line, for seven years, and had it up until this line was run by the proeessioners, then the court charges you. that the proeessioners had no right to interfere with that line; that is the simple question for you to determine — which is [the] true line.” The phrase “and that it is the true line” was erroneous, as it qualified the provisions -of such code section. Judgment reversed. All the Justices concur.