Moyle v. Connolly

Division Line between Adjoining Land-Ownebs.—If parties owning adjoining tracts of land agree that a fence shall be erected upon a certain line, and that the same shall be the dividing line between their respective tracts, and the agreement is executed, it establishes the partition line, and they are estopped from afterwards contesting it.

Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco. Ejectment to recover a belt of land lying on the boundary-line between fifty-vara lots Nos. 4 and 5, and fractional fifty-vara lots Nos. 2 and 3, in the city of San Francisco. In 1863, William Y. Wells owned said fractional fifty-vara lots, and the defendant Connolly owned lots 4 and 5. Said Wells and the defendant then entered into an agreement in writing, from which the following extract constitutes the substance: “This indenture witnesseth, that for and in consideration of the sum of one hundred dollars ($100), the receipt whereof, in gold coin, is hereby acknowledged, the said Owen Connolly, for himself and wife, agrees to allow the said Wells to establish and 'erect a partition fence between their respective property; the said fence to commence at a post on the land now occupied by said Connolly to be set on a line northerly from the last post on the lower part of the fence of the said Wells on Market street, five feet northward from the southern side of the old division fence now standing. That post to be the point of commencement, and the fence to be run in a direct line to the westward, to strike the corner post of the fence on Laguna street, now established by the said Wells.” The agreement was executed by building the fence, and Connolly entered into the possession of the land on his side of the fence. On the 7th day of June, 1864, Moyle sold lots 2 and 3 to the plaintiff, and gave him a conveyance, which was recorded the next day. The agreement between Moyle and Connolly was not recorded until June, 1867. This action was commenced on the 12th day of April, 1867, and the belt of land sought to be recovered was a portion of lots 2 and 3, lying on Connolly’s side of the division fence. It did not appear that the plaintiff when he bought had any notice of the agreement, except the existence of the fence and Connolly’s possession. The court below rendered judgment for the plaintiff, and the defendant appealed.