107 Cal. 309 | Cal. | 1895
Action to recover possession of the northeast quarter of section number 1 of township number 1 north, range 2 east, Mt. Diablo base and meridian, situate in Contra Costa county.
The complaint being in the ordinary form and unverified, the answer denies generally each and every allegation thereof; and then specially alleges adverse possession of the demanded premises by the defendants during a period of more than five years before the commencement of the action, and that the action is barred by the statute of limitations.
The cause was tried by a jury, which returned a general verdict in favor of defendants, whereupon judgment was rendered accordingly; and plaintiff brings this
Upon the trial it clearly appeared, and was admitted by both parties, that the plaintiff owned and was entitled to the possession of said northeast quarter, and that defendant owned the northwest quarter of said section, according to the survey and subdivision thereof by the government of the United States; and, consequently, that the controversy related solely to the location of the line between the northeast quarter and the northwest quarter of said section, and involved the question of title to only a strip of land running north and south across the north half of the section containing about seven and a half acres which lies wholly within the northeast quarter, if that quarter, according to government survey, is forty chains square; or even if the north and south boundary lines thereof extend forty chains west from the east boundary of the section; and there is no disputé as to the true location of the east boundary line of the section.
The plaintiff employed E. 0. Brown, county surveyor of Contra Costa county, to determine the true location, according to government survey, of the dividing line between the northeast and northwest quarters of tlfe section, who testified as a witness for plaintiff that he had procured from the United States land-office a copy of the original field notes of United States Deputy Surveyor L. Ransom, who had surveyed township number 1 north in 1851, and also a copy of the field notes of E. H. Dyer, who, as United States deputy surveyor, had subdivided said township into sections and quarter sections in 1861; that by those field notes he found and identified the northeast and southeast corners of section 1 of said township by means of witness trees, etc., called for in said field notes; but could find none of the monuments, witness trees, or other landmarks referred to in those field notes by which to locate or identify the northwest or southwest corners of that section, or any of the interior corners of the quarter sections
The county surveyor also located the southwest corner of section 1 at a crossing of fences upon the unwarrantable assumption that those fences and other fences in that vicinity had been located on true section and quarter section lines. The inevitable consequence of this was to reduce the length of the south boundary line of section 1 to 78.26 chains.
Assuming that, by the aforesaid methods, the county surveyor correctly located the northwest and southwest corners of the section, he properly divided it into quarter sections, whereby the disputed strip of land was found to be wholly within the plaintiff’s northeast quarter; and, on the other hand, if the methods pursued by the county surveyor were wrong and liable to lead to erroneous conclusions, as I think they were (Chapman v. Polack, 70 Cal. 487; Gordon v. Booker, 97 Cal. 586; Blackburn v. Nelson, 100 Cal. 336), and the
2. Assuming that the strip of land in question lies wholly within the northeast quarter of section 1, I think the evidence insufficient to justify a verdict to the effect that defendants acquired title to any part thereof by adverse possession.
A patent for the north half of section 1, township 1, was issued by the United States to the railroad company May 31, 1870, and the railroad company conveyed the northwest quarter of that section to defendant O’Brien on October 18,1872, described as the northwest quarter “ according to the United States survey,” and as “containing 160 acres.” On February 12, 1874, the railroad company conveyed to Charles McLaughlin all its rights in and to the northeast quarter of said section; and on October 11, 1892, all the rights and title of McLaughlin passed to plaintiff.
In the first place, the evidence shows that the controversy has always related solely to the location of the division line between the northeast and northwest quarters of section 1, and that defendants have never claimed title to any land in the northeast quarter, but have expressly disclaimed title to any part of that quarter as surveyed by the government. The testimony of plaintiff to this effect was not disputed, and was corroborated by the conduct of O’Brien during the survey by Brown. In the second place, the defendants never inclosed the land in question. They built a fence on what they claimed to be the division line running north from the south line of the north half of the section to a point about 20 feet south of the north line of the section. As to when this fence was built the evidence is indefinite and uncertain, but strongly tends to prove that it was built within five years next before the commencement of this action (fols. 143, 171, 180,
3. It is contended for respondents that the line upon which they built the fence was a conventional division line, agreed upon by McLaughlin and the defendants; and the grounds of this contention are that in 1885 or 1886, while Captain Lamberton was agent for McLaughlin for the purpose of superintending the lands of the latter and leasing the same, he staked the line upon which the defendants afterward built their said fence, and caused a furrow to he ploughed upon that line by McLaughlin’s tenants of the northeast quarter of section 1. But the evidence shows that Lamberton had no authority from his principal to fix or settle boundary lines, and that he never pretended to have such authority; that he staked the line merely for the purpose of showing McLaughlin’s tenants how far west they should plow; that he did not consult the defendants in regard to the location of the line, nor represent to them that it was the true division line; that the only means he employed to locate that line was measuring with a tape line from certain lines to which farmers in that vicinity had ploughed; and that he regarded his staking of the line as “ guess work.” None of the defendants were present with him while he was staking the line, or ever said any thing to him about the matter. Surely there was no agreement between Lamberton and defendants as to the location of the division line between the northeast and northwest quarters .of section 1, even if Lamberton had authority to make such agreement. Nor does the evidence show any acts or representations of Lamberton by which McLaughlin or his
I think the order should be reversed and a new trial granted.
Belcher, C., and Searls, C., concurred.
For the reasons given in the foregoing opinion the order is reversed and a new trial granted.
Garoutte, J., Harrison, J., Van Fleet, J.