Cassels v. Mays

Beck, J. 1. It is provided in the Civil Code, § 3821, that “acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line.” Where the principle of law embodied in this provision is applicable under the evidence, and the court undertakes to give it in charge to the jury, it should b.e given substantially if not literally. This requirement was not met by the court below in its instructions upon this subject, inasmuch as the words “by acts or declarations of adjoining landowners” were omitted therefrom. This omission constituted material error, as the jury might have thought that mere passive acquiescence would suffice to (establish a dividing line, whereas acquiescence of that character is not sufficient. 2. There is no merit in the assignments of error contained in the other grounds of the motion. Judgment reversed. All the Justices concur.