Opinion
Department Two
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Walter Van Dyke, Judge.
COUNSEL:
E. E. Bacon, for Appellant.
James Burdett, for Respondents.
JUDGES: Britt, C. Haynes, C., and Chipman, C., concurred. Harrison, J., Garoutte, J., Van Fleet, J.
OPINION
BRITT, Judge
This action concerns the boundary between adjoining tracts of agricultural lands. The quantity of land in dispute seems to be less than the tenth part of an acre. Plaintiff derives title through one A. W. Thaxter, now deceased; defendants' land was formerly the property of one John Willey. The court found in substance that in [54 P. 87] the year 1881 said A. W. Thaxter and John Willey, in order to determine a dispute and uncertainty between them respecting the common boundary of said lands, fixed and agreed by parol upon certain lines as and for such boundary, and that they and their successors in interest thereafter claimed and occupied their respective tracts up to the lines as so established during a period of nearly fifteen years, and until a time shortly before the commencement of this action, when the plaintiff repudiated the same. Defendants abide by such agreed boundary, and judgment was in their favor.
On appeal, the plaintiff argues that the evidence did not justify said findings. The finding of a dispute between said former owners was perhaps scarcely sustained by the evidence, but it is immaterial; there was uncertainty as to the location of the boundary, and this was sufficient foundation for their agreement. (Helm v. Wilson , 76 Cal. 485.) Less conflict appears in the evidence regarding said agreement and the subsequent occupancy conforming thereto than is common in such cases, and the finding was in accord with the preponderance of the same. The judgment following thereon was right. (Cavanaugh v. Jackson , 91 Cal. 580.)
It is said that the court erred in excluding evidence of subsequent declarations of said A. W. Thaxter to the effect that the location of the boundary was provisional and subject to future correction; these declarations were not against interest and were not shown to have been uttered in the presence of defendants or of their predecessor in title; they were properly excluded from consideration. (See Code Civ. Proc., secs. 1849, 1853.) The judgment and order denying a new trial should be affirmed.
For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed.