120 Cal. 123 | Cal. | 1898
This is an action to quiet title to certain land. It was brought against McConigle and others; but Mc-Conigle was the only defendant served, and there was a trial between him and plaintiff which resulted in a judgment for the defendant. Plaintiff appeals from the judgment, from an order denying his motion for a new trial, and from an order refusing to strike out defendant’s costs bill.
The premises in contest consist of a narrow strip of land running north and south parallel with the San Buena Ventura river; and the question in the case is whether, in 1860, when the final survey of the Mexican grant called the Rancho San Miguelito was made, the said river was on the east or the west side of said strip of land.
The final survey was made by a survevor named Terrell; and he was instructed by the United States surveyor general to make it in accordance with the decree of confirmation. By the decree the rancho was confirmed to the claimants thereof, “to the extent of two sqcare leagues of land, and no more,” with boundaries as follows: “The river San Buena Ventura on the
The view of the case most favorable to appellant is that which rests the question wholly upon the memory of the various -witnesses who testified as to their recollections of the course of the river at the time of the survey. But under this view the testimony, to say the least of it, was so substantially conflicting as to put the finding of the court below, based on such testimony alone, beyond any disturbance here. The course of the river has, no doubt, changed considerably during the long period of time since the survey. There have been times when there was some water running on both sides of the land in contest (and it is sometimes called an island), and there was evidence that during recent years the water has run mostly on the east side; but there were numerous witnesses who testified that at the time of the survey the entire river was on the west side, and ran along'the extreme western bluff of the San Buena Ventura valley close by the mouth of the Canada del Diablo.
And the correctness of the conclusion of the court below is strongly confirmed by the fieldnotes of the survey themselves, which constitute the description in the patent. A United States patent issued upon the confirmation of a Mexican grant is con-
We do not think that the court erred in excluding evidence offered by appellant of oral declarations of her grantors as to the boundaries of the rancho. They do not come within the provision of section 1849 of the Code of Civil Procedure, because they were not offered “against” one holding title under the parties who made the declaration; and we do not know of
We do not think that the court improperly admitted in evi-. dence the Leighton survey and map. It was certainly admissible in connection with certain deeds introduced by respondent, in which reference was made to the said map for description. Moreover, it appears from the evidence directly on the point, and from other matters appearing in the record, that it was an old map, generally well known and accepted as such. Moreover, before its introduction it was referred to by the witnesses of appellant themselves. Appellant’s main witness, Barry, who made the survey for her which was used at the trial, frequently referred to the Leighton survey in his testimony; and, indeed, he refers to it in his tieldnotes.
We see no error in the form of the judgment. It is true that in subdivision 1 of the complaint the plaintiff avers title to quite a large tract of land, and that in his answer the respondent, upon the ground of want of knowledge or information, denies the averments of said subdivision. But the respondent sets up in his answer a claim only to the strip of land hereinbefore mentioned; there was no issue as to any other land; and it was sufficient for the court, by its judgment, to adjudicate and determine the issues touching the said strip of land in contest, which were the only issues before the court.
On March 23, 1896, appellant moved to strike out the respondent’s costs bill, upon the ground that it had been served and filed more than five days after the decision of the court in the case. The decision of the court—that is, the findings of fact and law—was filed December 17, 1895, and the costs bill was not filed and served until February 20, 1896. The bill of exceptions does not show that notice of the decision was served on the respondent; but the brief of respondent seems to concede that there was such service. Waiving that point, however, we think that the court did not err in refusing to strike out the costs bill. Section 1033 of the Code of Civil Procedure provides that a costs bill must be filed within five days after notice of the decision of the court, "or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made.” In the case at bar, the costs bill was filed be
We see no other point requiring notice.
The judgment and orders appealed from are affirmed.
Henshaw, J., and Temple, J., concurred.