24 Cal. 435 | Cal. | 1864
This is an action of ejectment. The question presented by the record for review involves the construction of a deed given by Pena to Currey and Clarke, January 27th, 1853, and recorded February 19th of the same year. The description of the land intended to be conveyed is as follows :
“ All and singular any of the lands and lots of land embraced within the boundaries of that parcel or tract of land described in a certain deed executed by Manuel Baca to William McDaniel, bearing date on or about the 21st day of August, in the year 1850 ; the said land being in the County of Solano aforesaid, and the boundaries being described on a certain map thereof made by Thomas M. Swan, to which said deed to said McDaniel reference is hereby made for a full and ample description of said land.”
The description in the deed of Baca to McDaniel begins at a point near the centre of the north line of the tract to be conveyed, and proceeds as follows : “ Thence due west to the base of the mountains; thence in a southerly direction three English miles, that is to say, following the base of the mountains in a southerly direction three English miles; thence due east three English miles; thence due north three English miles; thence west to the place of beginning, so as to include three English miles square, or nine square miles of land.”
The deed to McDaniel calls : First—For nine square miles; Second—Lying in the form of a square; Third—Included within certain boundaries named. The boundaries as given are courses and distances, aided somewhat as to the westerly side of the tract by reference to physical objects. The initial point is not marked by any monument. The end of the line, described as running due west from the place of beginning, is not indicated otherwise than by saying that it terminates “at the base of the mountain.” The reference here is not to a visible object, but to a point, the exact location of which can never be determined with absolute precision. Witnesses of equal intelligence, after giving to the subject an equal amount of attention, might, and probably would, differ more or less in their conclusions concerning it. The western line is described as running in a southerly direction three English miles, following the base of the mountain; but the exact line of the base is not fixed by any reference to visible objects, nor is there any object named as marking the southern terminus of the western line. The residue of the description is clearly given by courses and distances, and to every practical intent we consider that the entire description is of like character. A plat was produced in evidence at the trial, based upon this description by courses and distances, and it appears as a fact in the case that
It appears that the map includes an area larger by nineteen hundred acres than the area embraced in the verbal description by courses and distances, which excess of quantity lies in the form of a parallelogram constituting the southern portion of the map.
The map contains something more than a mere delineation of exterior boundaries. The course and location of the hills on the west side of the tract are given. The general area of the map is subdivided into lots, the positions of which are respectively indicated by interior lines and by numbers,' and the quantity of land embraced in the lots respectively is stated in figures on the face of each lot. The site of the Town or Village of Vacaville is produced upon the plan, and the plan is traversed by roads and streams running in various directions. Not only are these natural and artificial objects represented upon the map, but they fill it to its exterior limits. The map further shows the position of the tract relatively to an outside object, viz: the dwelling house of Baca, and exhibits a “county road,” running from the house to and across the tract in a northeasterly direction; and the question precisely stated is, whether a map so constructed, it being referred to and made part of the deed to be construed, is to be regarded as a more authoritative manifestation of the understanding of the parties than the verbal description by courses and distances.
The rule governing the construction of deeds containing conflicting descriptions is that the description the least likely to be affected with mistakes is to be adopted. (Davis v. Rains-
But there is another view under which the point in controversy may be disposed of. Assuming that we are mistaken in holding that the description furnished by the map is more reliable and therefore more authoritative than the verbal description by courses and distances, the most that can be claimed for the appellant is that the two descriptions are of equal authority. Considering the case under that aspect, the settled rule of law would require us to adopt the description most favorable to the grantee. \J
Judgment affirmed.