Schmidt

Action to quiet title to a right of way. Plaintiff recovered judgment and appeals therefrom, claiming that the judgment is erroneous in several respects, and that he is entitled to more relief than is therein given.

The court had the right to consider the acts of the parties in adopting the description contained in the deed of the right of way from defendant to plaintiff, and the building of fences by defendant and use of the road by plaintiff. (Tyler on Boundaries, 124; Mulford v. Le Franc, 26 Cal. 108 ; French v. Carhart, 1 N. Y. 102 ; Stone v. Clark, 1 Met. 380 . ) It is evident that the main intention of the defendant in giving the deed, and of the plaintiff in getting it, was to give to plaintiff a right of way eighteen feet wide along an old road. The right of way was opened by the building of fences by defendant. It was eighteen feet wide at all places. The plaintiff enjoyed it and kept it in repair. It is not reasonable to suppose that for the space of ten years the description thus adopted without question was not intended to be the correct one.

The portion of the findings and judgment directing that each party pay his own costs is erroneous. The code directs that costs…