W. H. BEATTY v. W. H. DIXON, 56 Cal. 619

Sharpstein, J.: This action was commenced against nineteen defendants. It is alleged, among other things in the complaint, that the plaintiff and the defendants are the owners in severalty of a certain tract of land, the boundaries of which, through the lapse of time, the carelessness of occupants, and the absence of natural monuments, have become confused and uncertain.

The external lines of the entire tract, and those describing the several subdivisions, of it, have been obliterated, so that no one of the defendants is occupying according to the original boundaries of his claim, which causes those occupying tracts contiguous to plaintiff’s to encroach upon his land. All of the parties are equally interested in having said boundaries determined in one action, in order to avoid a multiplicity of suits at law, which would necessarily have to be resorted to if the relief prayed for in this action be denied.

The appellants in their answers do not deny any of these allegations, except that which charges them with encroaching upon the lands of others, and they pray that the true lines of their several tracts may be fixed and established. One of the grounds upon which it is insisted that the judgment in this case should be reversed is, that the facts alleged do not constitute a sufficient ground for the interference of a court of equity. This raises the question whether the case is one within the exclusive jurisdiction of a court of law, or of which a court of equity has concurrent jurisdiction.

The circumstance that the plaintiff might obtain all the relief to which he is entitled in a court of law would not necessarily oust a court of equity of jurisdiction of the case. There might, nevertheless, be some equitable ground upon which that jurisdiction could be upheld; “ 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 the lapse of time, accident., or mistake.” ( Wetherbee v.

Dunn, 36 Cal. 255.) One writer on equity jurisprudence says: “The relief which,equity affords in the case of confusion of boundaries is referable to the head of accident. When lands have become mixed or confounded without the fault of the plaintiff, equity will appoint a commission to settle the boundaries.” (Willard’s Eq. Jur. 56.) The prevailing doctrine upon this subject is well expressed, we think, by Mr.

Tyler, who says: “ From the cases examined, it is very clear that, both in England and in this country, courts of equity will always take cognizance of controversies in respect to boundaries of land whenever the parties cannot obtain substantial relief in a court of law, or where equitable circumstances are shown, calling for the interference of a court of equity; although, as a rule, unless some statute exists upon the subject^ the existence of a controverted boundary is not of itself alone a ground for relief in equity.

Other circumstances must be shown which seem to require the interference of the Court.” (Tyler’s Law of Boundaries, 266.) Is it shown that any of these circumstances exist in this case ? Is it shown that the question involved in this action affects a large number of persons, and that by proceeding in equity to determine the controversy a multiplicity of actions at law will be prevented? If so, the additional circumstance, that “the boundaries have became confused by lapse of time, accident, or mistake,” is all that is required to give a court of equity jurisdiction of the case. ( Wetherbee v.

Dunn, supra.) The existencc of these circumstances is alleged in the complaint, and not denied in any of the answers. Before making its interlocutory decree, the Court found upon all the issues which it could find upon before the commissioner, who was appointed to survey and fix the boundaries in controversy, had reported. The ajipellants insist that additional findings should have been filed after the report was made, and before entering the final decree. We do not think so. The only question which the Court had to determine after .the report was made was, whether it should be confirmed.

If confirmed, it constituted the basis of the final decree. There was no occasion for any findings in .addition to those upon which the interlocutory decree was based. As to the alleged insufficiency of the evidence to justify the decision of the Court, an examination of that which has been brought up in the bill of exceptions satisfies us that the evidence, although conflicting upon some points, is sufficient to justify the decision. The rulings of the Court, upon the trial, which were excepted to, were not, as we view them, erroneous.

We know of no authority upon which it could be held that the appointment by the judge of his son, as a commissioner to run the boundary lines, disqualified the judge to further act in the case, although the fixing of his son’s compensation for such services would devolve upon the Court of which he was the judge. The amendment of the interlocutory decree, so as to make it conform to the findings and judgment of the Court, was proper, although made more than six months after the decree was entered.

There being matter of i-ecord, by which the amendment could be made, the power of the Court to make it is too well settled to admit of doubt. After a careful consideration of the points presented by the appellants, we are satisfied that the order and judgment of the Court below ought not to be disturbed. Judgment and order appealed from affirmed. Myrick, J., and Thornton, J., concurred.