48 Cal. 28 | Cal. | 1874
This was an action of ejectment, and, at the trial, the
“1. The tract of land described in the complaint, and claimed by plaintiff, is part of six leagues of land known as the ‘Rancho el Primer Canon, or Rio de Los Berrendos,’ granted by the former Mexican Government of California, to Job F. Dye, on the 22d day of May, 1844. Said grant was a valid grant, and was confirmed to said Dye by the decree-of the United States District Court for the Northern District of California, on the 23d day of July, 1855, and the appeal from said decree was vacated on the 10th of February, 1857.
“2. The final survey of said Rancho Berrendos was made under and in pursuance of the Act of Congress, dated June 14, 1860, entitled ‘ An Act to amend an Act entitled an Act to define and regulate the jurisdiction of the District Courts of the United States in California, in regard to the survey and location of confirmed private land claims;’ said survey is known as the ‘ Tracy Survey,’ having been made in March, 1861, under instructions of United States Surveyor-General, J. W. Mandeville, by his deputy, C. C. Tracy, and was on the 5th day of April, 1861, by the decree of said United States District Court, approved as the final survey of said Rancho Berrendos.
“3. That the southern boundary line of said Rancho Berrendos, according to said Tracy survey, starts from the mouth of Antelope creek, where said creek empties into the Sacramento river, and runs from thence north forty-eight degrees, fifteen minutes east, so as to embrace within the said Rancho Berrendos only 235:20 acres of the demanded premises.
“4. The plaintiff, before the first day of October, 1866, by good and sufficient deeds of conveyance, became the grantee and owner of all the right, title and interest of said Job F. Dye, in and to the lands claimed in the complaint.
“ 5. The defendants entered upon the lands claimed in*31 the complaint on the first day of October, 1866, and held the same adversely to him from that time to the commencement of this action, and used and occupied the same during that' time, a period of op.e year, five and one half months.
“6. The rents and profits of 205 acres of said land lying within the bounds of said Tracy survey, and being a portion of the demanded premises, were worth at the rate of $2 per acre per annum, amounting to §598.
“7. On the 20th day of December, 1844, the former Mexican Government of California granted to the defendant, A. G. Toomes, five leagues of land lying on the south side of, and adjoining the tract granted as aforesaid, to said Job F. Dye. The grant to Toomes was known by the name of Sancho de los Molinos.
“8. On the 3d day of December, 1858, a patent, in the form authorized by the Act of Congress of March 3d, 1851, was issued to said A. G. Toomes, which said patent embraced within its boundaries all the lands claimed by the plaintiff in the complaint.”
Judgment being rendered for plaintiff in accordance with the findings, the defendants moved for a new trial, which was denied, and this appeal is taken from the judgment and order denying the motion for a new trial. The premises recovered by the plaintiff are claimed by him as being included in -the rancho “Bio de los Berrendos,” otherwise called the “Antelope Banch” or “Dye Banch,” which was granted to Francisco Dye by Governor Micheltoreno, May 22d, 1844, and was designated as “the land known by the name of Bio de los Berrendos, adjoining the margins of the river Sacramento, the boundaries commencing at the mouth of the river Berrendos, thence north three leagues in length and two in breadth—in all, six square leagues.”
The defendants rely upon a patent of the United States issued to the defendant Toomes in the year 1858, founded upon a grant issued to Toomes in December, 1844, by Governor Micheltoreno, granting to him a tract called “Bio de los Molinos,” “commencing the boundaries at the arroyo de los Berrendos, and running south five square leagues.”
2. Ttie defendants claim, however, that the plaintiff is estopped in this action to set up or rely v.pon the survey fixed by the decree of the District Court of the United States, because they say that the survey made in 1856 by the Surveyor-General (and upon which the patent to Toomes was issued in 1858) represents a boundary line agreed upon by Dye and the defendant Toomes, by which it was mutually stipulated between the parties that the northern line of the Molinos ranch, as subsequently delineated in the patent, should constitute the dividing line between the two
3. It is next objected by the defendants that, even admitting that the premises recovered are to be considered as included within the boundary of the Dye grant, they are not embraced within the calls of the deed of conveyance from Dye and wife to Fratt and King, through which the plaintiff claims.
The beginning point in this deed is the mouth of the Antelope creek, at its junction with the Sacramento river; and from that point the line runs northerly, meandering with the river to a sycamore tree on its bank; the second call (omitting a reference to be noticed presently) is easterly to Antelope creek; thence up the center of the creek to a tree on its eastern bank; thence to the eastern line of the ranch; thence down the eastern line to the southeastern corner of the ranch; and thence along its southern line to the mouth of Antelope creek, the point of beginning. As there given, the deed would follow the southern line of the Dye grant, as fixed by the final survey, and would include the premises recovered; but in the second call by which the most westerly portion of the northern line is run to Antelope creek, it- is mentioned as running parallel with the southern line of the ranch, “according to the survey of the same made by the United States Surveyor-General of said State.” The deed bears date, and was presumptively delivered, on the 24th day of November, 1857, and the survey of the Dye ranch became final, as we have seen already, only in April, 1861. Before the delivery of the deed, however, a survey of that ranch had been made in the field .by one Gray, acting under the directions of the Surveyor-General of the United States, for the time being, by which survey the southern line of the ranch was not identical with that line as appearing in the final survey referred to. If the calls of the Gray survey are to be gonsidered as fixing the southern
The parties* we think, intended to refer to the final survey of the ranch to be thereafter determined by the Federal authorities. The description contained in the Dye grant, and a glance at the Mexican diseno accompanying it, present its eastern and southern line, and, in fact, all its boundaries with such conspicuous precision as to-enable the parties to practically fix for themselves in advance the lines of the survey, which would of necessity thereafter be made by the authorities of the United States. The Sacramento river formed the western boundary, which was to begin at the mouth of the Antelope Creek, and extend northerly along the river, a distance of three leagues, to a point. From the two points thus fixed, the northern and southern
4. The last point to be considered concerns the defense, based upon the Statute of Limitations. But this is readily disposed of, because the fifth finding substantially is to the effect that when the action was brought the defendants had been in possession of the premises only one year five and a half months. If it is to be said that the finding referred to fixed these periods only for the purpose of ascertaining the amount of rents and profits to be recovered, and was not a finding upon the issue raised by the plea of the statute, then there being no express finding upon the point, a finding is to be implied against the defendants in support of the judgment the plaintiff had below, for this cause was determined in the Court below, under the practice prevailing before the taking effect of the present Code of Civil Procedure; and, finally, we have at any rate no means of determining at what time this action was commenced; for in this case, as in most others which have come here upon the plea of the Statute of Limitations, the parties seem to have been careful to omit that part of the record which would have shown when the complaint was filed.
There is nothing in the other points; and the judgment and order denying a new trial are affirmed, as of October 1st, 1872.
Remittitur forthwith.
Mr. Justice Rhodes did not express an opinion.