Helm v. Wilson , 89 Cal. 593 ( 1891 )

Belcher,

is the second appeal in this case. The decision on the first appeal is reported in 76 California, 476, and the facts involved in the case are there very fully stated. The new trial again resulted in a judgment for the plaintiff, from which, and from an order refusing a new trial, defendant appeals.

The question in controversy was as to the true location of the line dividing the lands of plaintiff and defendant. The defendant pleaded the statute of limitations, and then alleged that while the line was uncertain and in dispute, the grantors of plaintiff and defendant agreed upon and established the line claimed by defendant as the true line, and erected and maintained a fence thereon; that they and their successors in interest thereafter, till the commencement of this action, acquiesced in the line so agreed upon and established, and respectively held and claimed possession up to the same. The defendant further, “ as a set-off for all damages and rents claimed by the plaintiff, or that may be recovered by him,” alleged that he had placed certain permanent improvements upon the disputed strip of land, and that in the erection of the improvements he acted in good faith, and believed he had a good title to the said strip.

At the trial, the evidence upon most of the issues raised by the answer was conflicting. The court gave to the jury eight instructions at the request of the plaintiff, and six at the request of the defendant. These instructions state the law applicable to each party’s theory of the case, and should be read together; when so read, they seem to cover the whole case, and to be clear and explicit.

The only points made in support of the appeal are, that the court erred in giving the sixth and seventh instructions asked by the plaintiff, and in modifying one of the instructions asked by the defendant,

The sixth instruction was to the effect that the plaintiff was entitled to recover, unless the defendant had acquired title to the land in dispute in some one of the ways set up in his answer, “ and the fact that defendant has placed improvements upon the property in dispute should not make a.ny difference with the verdict you should give in the case.”

We see no error in this instruction. It was not and is not questioned that the plaintiff owned the land, unless the defendant had acquired title to it as against him; and if he did own it, certainly his action could not be defeated by a showing that defendant had placed improvements upon it.

The seventh instruction was, in substance, that the burden was upon the defendant to establish an agreed line by parol testimony, and that unless the line claimed by defendant was distinctly agreed upon by the adjacent owners, the jury could not find in favor of the defendant upon the theory of an agreed line.

It is claimed that the word “ distinctly,” as used in the instruction, “was calculated to mislead the jury in this, that they were impliedly told no parol evidence was admissible to prove an agreed line from the acts, situation, acquiescence, and relations of the parties.” We do not understand this to be the effect of the instruction. In the eighth instruction asked by the plaintiff, and in the third asked by the defendant, the court very clearly told the jury when and under what circumstances a division line would become established by the acquiescence of the parties. Here the court was speaking of a line claimed to have been established by an oral agreement, and the jury were simply told that, to make such an agreement effective, it must have been distinctly made; that is, the minds of the parties must have fully met. In this we see no error prejudicial to the defendant.

Defendant’s instruction, which was modified and given, was upon the subject of estoppel. Other instructions upon that subject were given at his request, which very fully stated the law applicable to the case. The instruction complained of did not state all the elements or conditions necessary to constitute an estoppel in pais, and it might properly have been refused. As modified, we do not think it misled the jury or prejudiced the defendant.

The judgment and order, in our opinion, should be affirmed, and we so advise.

Vancliee, 0., and Temple, CL, concurred.

The Court.—For the reasons given in the foregoing ©pinion, the judgment and order are affirmed.