197 P. 125 | Cal. Ct. App. | 1921
Appellant brought this action to recover possession and the issues and profits of lot 14, in section 33, township 29 south, range 12 east, M. D. M., in San Luis Obispo County, alleged to have been unlawfully withheld by the defendants. Judgment was entered in favor of the defendants, and plaintiff appeals therefrom.
Appellant is the owner of an undivided three-quarters and defendant Arata is the owner of an undivided one-quarter of the land described in the complaint. They became such owners through mesne conveyances from an owner to whom the land was patented by the United States government by patent of date September 28, 1904. The patent conveyed the land "according to the final plat of the survey of the said land returned to the general land office by the surveyor-general." Respondents are in possession of a chrome mining property called "The London Mine," from which they are alleged to have taken a large amount of valuable ore. If that mine is located on said lot 14, plaintiff has established a cause of action. If, as claimed by respondents, the mine is located south of lot 14, the judgment should be affirmed. While township 29 was government land, several surveys of the township or parts of it were made, the last of which was that made by J. R. Glover, unless, as claimed by appellant, the Glover survey was superseded by a later survey of government land made by one Bardwell, which survey was approved and filed in the general land office in 1889. The Glover survey was approved and filed in 1880. The judgment herein rests upon the Glover survey, which was received in evidence over the appellant's objections, based upon his contention that it had been superseded by the Bardwell survey.[1] It is conceded to be the law that, before patent, the government may make as many surveys of a tract of public land as the land department desires, and that the last accepted survey will control. The question here to be determined is whether or not the Bardwell survey is the last accepted survey of the land in question prior to the date of the patent. The record shows that the Glover survey was made as a survey of lands in township 29, whereas the Bardwell survey purports and was *453 intended to be a survey of lands in township 30, which lies immediately south of township 29. Bardwell assumed, in accordance with the correct theory and practice, that the north line of sections 1 to 6 in township 30, being the north line of the same township, should coincide with the south line of township 29. The notes of his survey show that in his search for the previously established monuments of surveys he discovered that Glover had erroneously dropped a tally of ten chains in his survey. Concluding, therefore, that this error should be corrected in his own survey, he established the north line of township 30 some distance south of the south line of township 29, as shown on the Glover survey. If the acceptance of the Bardwell survey thus made had the effect to move township 29 and the subdivisions therein south so as to coincide with the north line of township 30 as established by Bardwell, it will result that the mining property in question is located on plaintiff's land. If that result does not follow, then the defendants have not infringed upon the plaintiff's property.
We must revert to the language of the patent which conveyed to the patentee, through whom plaintiff's title is derived (besides other property), lot 14, of section 33, in township 29 south, etc., "according to the final plat of the survey of the said land returned to the general land office by the surveyor-general." Both parties to this appeal have referred toKimball v. McKee,
The judgment is affirmed.
Shaw, J., and James, 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 18, 1921.
All the Justices concurred.