Clapp

This action was brought to determine the common boundary line between plaintiffs’ land upon the north and defendants ’ land upon the south, and to restrain defendants from cutting down and destroying a row of pomegranate trees which plaintiffs assert are upon and define the boundary line. A nonsuit was granted and from the judgment which followed plaintiffs appeal.

The land in controversy is a strip four or five feet wide and 590 feet long. There is no contention that there are any false calls in the deed to the plaintiffs nor that there is any discrepancy between the calls and visible and declared monuments. The deed of the plaintiffs, it is stipulated, is certain in its terms, and running the courses and distances of this deed, the boundary line is fixed four or five feet north of the row of pomegranate trees. Nor is this a case where the litigants hold from a common grantor, or where one, the owner of the whole tract, is the grantor of the other who thus becomes the owner of a portion of the tract. The case is one where plaintiffs to prevail must establish an uncertain boundary line, an agreement between the conterminous owners to fix that boundary line and the fixing of that…