171 P. 976 | Cal. Ct. App. | 1918
This action arises out of a dispute over a boundary line. The plaintiff, James L. Howard, is the owner of lot 15 and eight and one-half acres off the north end of lot 18 of the Yokayo Rancho, near Ukiah, in Mendocino County, and the defendant, Ruddick, is the owner of the remainder of lot 18, which he acquired from his codefendant, E. L. Cunningham. Plaintiff's father formerly owned the two lots, and some years ago he conveyed to the plaintiff the land now owned by him as above stated, and the part now owned by Ruddick he conveyed to another son, by name Mack Howard, who in turn conveyed it to Cunningham.
The sole point in this case is whether the evidence supports the finding against plaintiff of the location of one of the corner posts common to the two properties. The location of this post determines the boundary line between the properties *230 of the plaintiff and of Ruddick. The stake has long since disappeared.
The calls of the deed by which plaintiff's father acquired the land now owned by plaintiff, and of the deed conveying it to the latter, both locate this corner — which is described as "P 8" — at the point which is found to have been its location by the trial court.
Oral evidence wag introduced to discredit the calls of these deeds as to the location of this corner. All the other monuments fixing the boundaries of these properties are in existence, and their location unquestioned. The point of location of stake "P 8" was, it is conceded, in a line at the northerly end of which is a stake marked "P 9," and at the southerly end of which is a stake marked "P 6." This line forms the entire westerly boundary of Ruddick's land and a part of the westerly boundary of the land of plaintiff. By the calls of the respective deeds of plaintiff and Ruddick this line from end to end should be 44.49 chains long. It is in fact by actual surveyor's measurement on the ground .44 chains longer than this, or 44.93 chains in length; and the plaintiff claims that instead of the stake "P 8" being located, as found by the court, 2.19 chains south from the corner "P 9," it should have been found to be 2.95 chains south therefrom, or 44.98 chains northerly from the corner "P 6."
Mack Howard, upon whose testimony plaintiff mainly relies, testifies that he saw this stake set by the engineer who made the original survey; that it was set at the westerly end of an old fence and in line with two trees, which he stated are still standing, and that he saw this post there for many years thereafter; that this old fence was straightened subsequent to the survey, and thereafter was moved about thirty feet south of its original location. This fence still stands on the line to which it was removed. Other members of the Howard family also testified to the same facts except as to actually seeing the survey, Mack Howard being the only witness called who claimed to have been present at the placing of the stake "P 8."
The plaintiff contends that the evidence of these witnesses, coupled with certain inaccuracies in the calls of the deeds as to other distances and in the statement of acreage contained within their descriptions, concluded the trial court from finding *231 the location of the stake "P 8" at the point where the decision of the court places it. With plaintiff's assertion that monuments upon the ground control courses and distances as recited in a deed no fault can, of course, be found. This is the unquestioned rule of construction of deeds (Code Civ. Proc., sec. 2077, subd. 2).
Nor can any exception be taken to plaintiff's statement that where the monument has been obliterated or destroyed its location may be proved by parol. But with his contention that under the evidence in this case the trial court could not find the location of the post "P 8" at the point where the finding places it we cannot agree.
The calls of these two deeds were some evidence of the location of the lost stake "P 8." Were there no other evidence whatever no question could be made but that these calls would be controlling in this case; and were the other evidence conclusive against these calls we are not prepared nor called upon in this case to say that plaintiff might not be correct in his contention that the calls of the deeds must fall before it. But here there are certain inherent disagreements and defects in the testimony of plaintiff's witnesses which tend to weaken the value for accuracy of the evidence of Mack Howard in particular, and also of the other witnesses. For instance, without analyzing this evidence minutely as counsel have done, it may be said that Mack Howard was only ten or eleven years old when the survey testified to was made, and yet he testifies to the exact location of practically all the stakes set by the engineer. He was fifty-nine years old when he testified. The survey was made fifty-odd years ago. There were certain inconsistencies in the testimony of the various witnesses the significance of which it was the province of the trial court to determine. The judge who tried the case saw Mr. Mack Howard on the witness-stand, observed his manner of testifying, and whether his memory was accurate as to these events of long ago. Upon that judge rested the duty of weighing this oral evidence as against the calls of these deeds and as against the testimony of a surveyor, called by the plaintiff himself, whose evidence in a measure tends to corroborate the deeds.
We find nothing out of harmony with these views in the cases cited and relied upon by the appellant. Thus, inGordon *232
v. Booker,
In Penry v. Richards,
Judgment affirmed.
Lennon, P. J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 10, 1918.