Powers v. Jackson

50 Cal. 429 | Cal. | 1875

By the Court :

In case of a conveyance of land described only as being a township or subdivision of a township, the actual survey and monuments of the United States surveyor are referred to on the face of the deed, since there is and can be no “ township ” on the public lands of the United States, except such as has been thus actually surveyed and marked.

The deed from Messinger to Giddings, therefore (if the map referred to and the note on the margin thereof be incorporated in the deed), contains a sufficient description. It refers to physical objects on the surface of the earth, to wit, the township or section lines as marked by the government surveyor. From these may be ascertained the point of commencement of the survey contained in the marginal note, and from this, as an initial-point, the courses and distances mentioned in the marginal note will include a tract of land.

No stakes or monuments, other than those of the government survey, are named or referred to in the conveyance from Messinger to Giddings. Stakes, by whomsoever placed, cannot therefore be used to control the courses or distances of the description in that conveyance. To permit this would be to permit the deed to be contradicted whenever the location of the stakes did not agree with the termini of the lines mentioned in the deed. The question here is not whether, in locating a tract of land, stakes or monuments, named or referred to in the deed, shall control courses and distances also mentioned in the deed. In such cases, the stakes or monuments will ordinarily be regarded as fixing the true points.

Here we are called on to say that objects not named or referred to in the deed shall fix the bounds of a tract of land otherwise perfectly well defined. This we cannot do without violating correct rules of construction.

' Judgment and order reversed and cause remanded.