SETH H. WETHERBEE v. MARY DUNN et als., 36 Cal. 249

By the Court, Sanderson, J. : This action purports to be what would have been, prior to the adoption of our code of procedure in civil cases, a bill in equity to ascertain and settle disputed boundaries between adjoining land owners. It was brought against two classes of defendants—first, the widow and minor heirs of George Dunn, deceased; and second, the widow, heirs, and executors of Frederick P. Tracy, deceased. Each class of defendants was represented by different counsel.

There seems to have been no dispute between the plaintiff and the Tracy heirs; for the description of the land claimed by the latter, as given in their answer, is the same as that contained in the complaint, and the contest at the trial was between the plaintiff and the Tracy heirs on one side, and the heirs of Dunn on the other. The transcript shows that the case first came on for trial, without'a jury, on the 24th of January, 1865, John Reynolds appearing as attorney for the plaintiff, and James Pratt for the Tracy heirs, but no one appearing for the heirs of Dunn.

A trial was then had without the presence of the only parties to the action who had any interest in defeating it, and a judgment was obtained in all respects satisfactory to the plaintiff and the Tracy heirs. This judgment, however, on the 30th of the same month, was vacated upon the motion of Gregory Yale,'attorney for the heirs of Dunn, on notice to the plaintiff, but without notice to the Tracy heirs, and in the absence of their counsel; and an order made allowing the Dunn heirs to introduce their evidence, leaving the evidence which had been already taken to stand.

The trial was again proceeded with on the 6th of February, 1865, at which time James Pratt, attorney for the Tracy heirs, appeared without any objection to the order opening the case, and participated on their behalf in the further trial of the case, which resulted in a judgment dismissing the action at the cost of the plaintiff—which judgment was rendered on the 1st of May, 1865, but was not entered of record in the Judgment Book until the 12th of May, 1866, more than a year after it was rendered.

The plaintiff moved for a new trial, which was denied on the 2d of April, 1866, and appealed from the judgment and the order denying a new trial on the 30th of May following. On the day last named the Tracy heirs also appealed from the judgment. The two appeals have come up in the same transcript, which contains the statement on the plaintiff’s motion for a new trial, and the statement on the appeal of the Tracy heirs from the judgment. The appeals from the judgment were both taken more than a year after its rendition, and cannot, therefore, be entertained under the rule announced by us in Gray v.

Palmer, 28 Cal. 416; Peck v. Curtis, 31 Cal. 207, and Genella v. Relyea, 32 Cal. 159. In all of those cases we held that the time within which an appeal from a judgment may be taken must be computed from the time the judgment is announced by the Court and entered in its minutes, and not from the date of its entry in the Judgment Book by the Clerk. In relation to the plaintiff’s motion for a new trial, upon the case made both by the pleadings and the evidence, our views coincide with those expressed by the Court below.

It may be conceded, that under the head of concurrent jurisdiction, Courts of equity may entertain cases of this character; but it is certain that of late they have confined their jurisdiction in respect to such cases within very narrow limits.

It can rarely happen that the action of ejectment will not afford adequate relief in such eases; and wherever such appears to be the case, Courts of equity will decline to interfere, upon the familiar principle that where there is an adequate legal remedy there is no ground for relief in equity. “ The general rule now adopted is not to entertain jurisdiction in cases of confusion of boundaries, upon the ground that the boundaries are in controversy; but to require that there should be some equity superinduced by the act of the parties—such as some confusion, where one person has plowed too near another, or some gross negligence, omission, or misconduct on the part of persons whose special duty it is to preserve or perpetuate the boundaries.” (1 Story’s Eq.

Jur., Sec. 615, et seq.) The existence of a controverted boundary by no means constitutes sufficient ground for relief in equity; in all such cases the remedies at law are adequate. Before Courts of equity will interfere, some equitable ground must attach itself to the controversy—such as fraud, or some relation between the parties which makes it the duty of one of them to protect and preserve the boundaries; or the prevention of a multiplicity of suits; or that the question affects a large number of persons, and the boundaries have become confused by lapse of time, accident, or mistake.

The complaint in this case, examined by the light of what has been said, fails to show, in our judgment, any ground whatever for relief in equity.

It avers that the several parties named—the plaintiff, the Tracy heirs, and the heirs of Dunn—are “ seized and possessed in fee simple, in severalty and in separate and distinct parcels, of Block Humber Twenty-five in the City and County of San Francisco.” It then proceeds to show and particularly describe by boundaries—first, the portion of which the Tracy heirs are seized and possessed; second, the portion of which the heirs of Dunn are seized and possessed; and third, the portion of which the plaintiff is seized and possessed, by the general averment that “he is seized and possessed of all the rest and residue of the block.” Thereafter the complaint proceeds to show how the parties to the action became so seized and possessed, which portion of the complaint is wholly immaterial to the question in hand.

It next avers that the plaintiff and the heirs of Dunn “do now differ and dispute as to the courses and distances” of certain lines thereinbefore described, and that they are “unable to agree among themselves, or settle the boundaries” of the parcel in question; and generally that “said lines and boundaries are so indefinite, and have become so confused and confounded, that the parties and owners of the respective parts and portions of said block of land cannot ascertain, determine, and settle” the same without the aid of the Court.

It is then charged that Mary Dunn has, without the knowledge or consent of the plaintiff, removed certain division fences, and claims to hold by possession parts of said block which belong to the plaintiff and the heirs of Tracy. Add to this that it appears throughout that George Dunn in his lifetime, and his heirs after his death, have been in the exclusive possession of the entire block since 1854, for themselves and their alleged co-owners, and the entire substance of the complaint is stated.

This brief analysis of the complaint is sufficient, without further comment, to show that the plaintiff was entitled to no relief which he could not have obtained at law in the ordinary action of ejectment. A controversy about boundaries is alleged, but to it are attached none of the grounds for relief in equity to which we have referred.

Worse than that: it is at least doubtful whether the complaint is not felo de se in respect to the alleged controversy about boundaries, for, as already stated, it contains matter which is nearly, if not quite, the equivalent of an allegation of an ouster and an adverse holding on the part of the widow Dunn, thus showing that the real controversy is about the title to the land claimed by the plaintiff and the heirs of Tracy, and not about its boundaries merely. That such is the real character of the case is not left in doubt, when we turn to the testimony given at the trial.

It there appears that the Dunn heirs were, at the commencement of the action, and had been for a long time prior thereto, in the adverse possession of the whole block. Where such are the conditions, there is no foundation for relief in equity, and no occasion to go elsewhere than to the Courts of law. Had the Court below sustained the demurrer to the complaint, and dismissed the action without a trial upon the facts, we should not have disturbed its judgment. Much less are wo disposed to do so in view of the facts shown by the testimony. Judgment and order affirmed.