Penry v. Richards, 52 Cal. 496

52 Cal. 496 | Cal. | 1877

A map is always presumed to represent a survey, and a reference to the map is a reference, to the survey. (Jackson v. Cole, 16 Johns. 257; Jackson v. Freer, 17 Johns. 29; Chinoeth et al. v. Haskell's Lessees, 3 Peters, 93; O'Farrell v. Harney, 51 Cal. 125.)

The stakes showing the actual lines of the streets and blocks must prevail over the map, and courses and distances, points of compass and initial points. (Code of Civil Procedure, sec. 2077; Feris v. Cooven, 10 Cal. 630, and cases cited.)

W. C. Stratton, for the Eespondents.

The map referred to in the deed must be taken as a part of the deed, and the map must be regarded as giving the true description of the land conveyed. ( Caldwell v. Senter, 30 Cal. 542; Vance v. Force, 24 Cal. 435; 3 Wasburn’s Eeal Property, 367.)

If there be a conflict between the survey of Haley and his map, the map must govern, because it is referred to in the deed, and is a part of the deed, and neither the deed nor map make mention of stakes at the corners of the block. And courses and distances referred to on a map must govern, in preference to any object on the ground not referred to in the deed. (Powers v. Jackson, 50 Cal. 429; Code of Civil Procedure, sec. 2077, subdivision 6; 3 Washburn’s Real Property, 348.)

By the Court :

The deed from the town of Santa Barbara to Carillo—from whom plaintiff deraigns—described the premises conveyed as a piece of land, within the limits of the town, “ known and described on the official map of said town as Block bio. 6, and containing one hundred and fifty yards square.” It was competent by parol evidence to identify the map referred to, and when identified, it was the duty of the Court to treat it as constituting a portion of the deed. The map made by Wackenreuder had already been declared by ordinance of the city to be the “ official map,” and even if another map had been referred to as the official map in conveyances made by the town previous to that declaration, there can be no doubt that, in deeds made after the passage of the ordinance, the words referred to the map declared to be official by the ordinance.

The Wackenreuder map having been identified as the map referred to, that map is found to be entitled on its face a map of the town “ as laid out by Saulsberry Haley.” These words are the equivalent of “ as surveyed by Haley,” and include a reference to the monuments erected by Haley. Thus the deed, is to be construed as referring to the monuments, and if the evidence established the points where the monuments had been erected by Haley, such points should have controlled in determining the location of Block 6. The Court below ignored the evidence tending to show the location of the Haley stakes, and decided the case on the theory that the demanded premises were to be ascertained by running the courses and distances from the initial point of Haley’s survey, without regard to the monuments by him erected. This was a violation of the well-known principles applicable to the mode of ascertaining the true position of lands described in deeds of conveyance.

Judgment and order reversed, and cause remanded for a new trial.