Page images
PDF
EPUB
[ocr errors]

with a view to defeat this trust deed. It was excluded by the court.

This declaration of homestead has been before this court in the case of Steiner v. Graves, (No. 5,276.) And, as we understand, it has been declared valid. See Ham v. Santa Rosa Bank, 62 Cal. 125. Therefore it could only be abandoned by “a declaration, or a grant thereof executed and acknowledged” by Crogan Graves and Miriam Graves, his wife. Section 1243, Civil Code. The trust deed was executed and acknowledged by Crogan Graves alone; hence, as against a valid declaration of homestead, it was void. The court below, in refusing to admit in evidence this declaration of homestead, committed error, and its judgment should be reversed.

We concur: SEARLS, C.; BELCHER, C. C.

BY THE Court. For the reasons given in the foregoing opinion the judgment is reversed and cause remanded.

(2 Cal. Unrep. 577)
CRESCENT Mill & Trans. Co. v. Hayes and others. (No. 8,948.)

Filed November 30, 1885.
OBSTRUCTION OF NAVIGABLE WATER - INJUNCTION AVERMENT OF SPECIAL

INJURY.

In an action to enjoin defendants from interfering with the navigability of Lake Earl, which was declared by the legislature to be navigable, the complaint shows special injury to the plaintiff where it avers that plaintiff is the owner and in possession of a mill situated on Lake Earl; that it has been such owner and so possessed of this mill for 13 years next last past; that plaintiff's business is the manufacture of lumber for sale at this mill; that it is necessary that plaintiff should use said lake in transporting the saw-logs cut from its lands to said mill; and that what defendants threaten to do will destroy the navigation of said lake, so that the logs cannot be transported to said mill. In bank. Appeal from superior court, county of Humboldt.

W. A. IIimilton, J.J. De Haven, and J. D. H. Chamberlain, for appellants.

R. G. Knox and L. F. Cooper, for respondents.

THORNTON, J. This is an action to enjoin defendants from interfering in the navigability of Lake Earl, which had been by an act of the legislature, approved February 4, 1874, declared navigable. The lake is a verred to be in fact navigable. It is contended that the contemplated interference would be a public injury; that the complaint does not show any special injury to the plaintiff, and therefore it cannot maintain the action. In this contention we cannot concur.

It is averred in the complaint that the plaintiff is the owner and in possession of a mill situate on Lake Earl; that it has been such owner and so possessed of this mill for 13 years next last past; that plaintiff's business is the manufacture of lumber for sale at this mill; that it is necessary that plaintiff should use said lake in transporting the saw-logs cut from its lands to said mill; and that what defendants threaten to do will destroy the navigation of said lake, so that the logs cannot be transported to said mill. We think that the above averments show a special injury to the plaintiff. The defenses set up in the answer were demurred to, and the demurrer was sustained. On examination of the answer, we are of opinion that the court committed no error in its ruling. The court finds that all the allegations in the complaint were true. There is no error in the record. Judgment affirmed.

We concur: MORRISON, C. J.;

MORRISON, C. J.; Ross, J.; SHARPSTEIN, J.

(68 Cal. 134)

GRAVES v. BAKER. (No. 8,360.)

Filed November 30, 1885. HOMESTEAD-DECLARATION OF-STATEMENT OF VALUE.

A declaration of homestead is not bad on the ground it does not clearly and explicitly state the value of the property declared on as a homestead, where it states that “the cash value of said homestead is about $4,000, gold coin.” Department 2. Appeal from superior court, county of San Luis Obispo.

Gregory & Shipsley, for appellant.
McD, R. Venable and W. J. & E. Graves, for defendant.

FOOTE, C. The plaintiff sued in ejectment. The land involved in the controversy was the same as that upon which this court held a valid homestead had been declared by Miriam Graves, the wife of Crogan Graves, in case of Steiner v. Graves, No. 5,276, unreported. The plaintiff offered this declaration of homestead in evidence to support his right of possession to the land in controversy. It was excluded by the court below, and is assigned as error here.

The ground of the exclusion was that the words, “the cash value of said homestead is about $4,000, gold coin," in the declaration did not state clearly and explicitly the value of the homestead. But this court, as we have seen, in the case of Steiner v. Grares, supra, held those words to be sufficient. Therefore the judgment should be reversed and the cause remanded.

We concur: BELCHER, C. C.; SEARLS, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment is reversed and cause remanded,

See Graves v. Baker, ante, 691.

(68 Cal. 105)
BEAUDRY and others v. DOYLE. (No. 9,048.)

Filed November 26, 1885.
1. BOUNDARIES-MONUMENTS-COURSES AND DISTANCES.

In bounding lands, known and fixed monuments will prevail over courses

and distances. 2. EVIDENCE REVIEWED-JUDGMENT REVERSED.

Evidence in regard to the boundary of certain lands reviewed, and held that, in accordance with the rule that monuments govern courses and distances, the judgment should be reversed. Commissioners' decision. Department 1. Appeal from superior court, county of Alameda. Doyle, Barber, Scripture & Galpin, for appellant. A. M. Rosborough and R A. Redman, for respondents.

SEARLS, C. This is an action of ejectment to recover a tract of land of about five acres situated in the county of Alameda. Plaintiffs had judgment, and defendant prosecutes two appeals, one from an order denying a new trial, and the other from the final judgment.

The land in controversy is parcel of the Peralta rancho, to which a patent issued to Domingo and Vicento Peralta, February 10, 1823.

A portion of the rancho had been surveyed and divided into blocks or plots by one Julius Kellesberger as early as 1856, and a map thereof filed in the office of the county recorder of Alameda county during that year. Plaintiffs claim plot 41, and defendant owns plot 42, which lies north of and adjoins 41. The land in dispute consists of a narrow strip along the north side of plot 41, and is claimed by plaintiffs under title to that plot, deraigned from the patentees through various mesne conveyances. The immediate grantees of the Peralta title owned blocks 41 and 42, and on the same day conveyed block 41 to parties under whom plaintiffs claim, and block 42 to certain other parties under whom defendant holds. The deed to defendant's grantor was first recorded. The land lies on the westerly side of San Pablo avenue, formerly known as the “County Road,” and extends from that avenue to the bay of San Francisco. The deeds under which plaintiffs claim describe their land as commencing at a post marked “B,” on the westerly side of the road, (at south-east corner;) running thence by course and distance to the bay, thence by course and distance northerly along the beach to the north-west corner, being the southwest corner of plot 42; thence easterly by course and distance to the north-east corner at the county road; thence southerly along the county road to the place of beginning; and describes it as “known and designated as plot No. 41, upon a map of the ranches of Vicento and Domingo Peralta, surveyed by Julius Kellesberger and filed. in the office of the recorder of Alameda county on the

day of -, 1856, and containing 100.63 acres.” The deeds under which the defendant deraigns title in like manner describe plot 42, commencing at a post on the westerly side of the county road, at the north-east corner of land claimed by one Bertrand, (plot No. 41.)

The description then gives the courses and distances around the tract, containing 102.25 acres, and describes it as known and designated as plot 42, on map, etc., according to the survey above mentioned. The lines along the northerly side of plaintiffs' land and the southerly line of defendant's, which should be identical, vary as to their course one-fourth of a degree, which, according to the testimony, would make a difference of 131 feet in the location of the north-west corner of plaintiffs' and the south-west corner of defendant's land, which corners should be the same. The description in all the deeds of each plot refers to the other in such manner as to show that the only difficulty should be in locating and fixing upon the ground the several points designated.

The question is not one of adverse possession, but of location on the earth's surface of the true lines of the paper title to the two plots. There is no doubt, we think, that the lines traced as in plaintiffs’ deeds will include the land in dispute. Substantially, the plaintiffs do no more in making out their title than to introduce their deeds, and to show that the calls in those deeds include the disputed ground.

In answer to the case thus made, defendant introduced evidence tending to show that the land composing the two plots has been owned by separate persons since about the year 1852; that on the line between them there was a fence as early as 1852, leading from the county road towards the bay shore; that along the north side of this fence a road led from the county road to the vicinity of the bay, where Mason, the owner of plot 42, then lived; that the grantor of plaintiffs cultivated plot 41 up to the fence on one side, and Mason, à grantor of defendant, farmed the land on the other side; that after the survey was made, the stake at the north-east corner of plaintiffs' plot stood at the end or angle of the fence at the intersection of this cross-road with the county road, now known as San Pablo avenue; that in 1864, when a new fence was necessary between plaintiffs and defendant, Beaudry, one of the plaintiffs, procured a surveyor to establish the north-west corner of plaintiffs' land and the south-west corner of defendant's land; that it was found there was an overlapping of 131 to 18 feet, but that the corner on the front at the avenue was not then in dispute to the knowledge of the surveyor who made the survey, who says it must have been agreed upon, or at least no dispute about it; that plaintiffs and defendant divided the land in controversy, some 13 to 18 feet, and built a fence on the line; that plaintiff Beaudry built the end commencing at the avenue and constructed it along the south side of the road leading to the bay; that the grantor of the plaintiffs sold to one Holmes, in 1855, two acres in the north-east corner of the claim which he fixes as being in the angle of the avenue and cross-road; that on the twenty-ninth day of December, 1874, plaintiffs conveyed to one Spooner three acres of land shown by the deed to be at the same angle and describes it as bounded by the defendant. There was a number of circumstances in addition tending to show that the northerly line of plot 41 was in fact along the southerly side of the road leading from the avenue to the bay shore.

The more we have considered and analyzed the testimony the more have we become convinced that the northerly line of plaintiff was in fact on the southerly side of said road; that the stake marking the north-east corner stood at the point indicated.

The testimony of George W. Parsons, one of plaintiffs' witnesses, is in full accord with the defendant's witnesses on the point. He had known the land since 1853. After speaking of the line between the two tracts of land, and placing it on the south side of the road leading to the bay, he says: “I could not say where Kellesberger set the post at the north-east corner of Bertrand's claim, (plaintiffs’;} but if he did set it at the north-east corner, it would have been at the end of the fence where it stands now, or very close.” It seems to us that there is no substantial conflict in the testimony as to where the corner post in fact stood,—that it was at the angle of the fence on the south side of the road leading from San Pablo avenue to the bay, and that the line of demarcation between plot 41 and plot 42, ir, the light of the testimony, is along the fence mentioned on the south side of the road.

Upon the theory that known and fixed monuments will prevail over courses and distances, and upon the whole case as presented, we are of opinion the verdict should have been for the defendant, and that the judgment and order denying a new trial should be reversed and a new trial had.

.

[blocks in formation]

BY THE Court. For the reasons given in the foregoing opinion the judgment and order are reversed, and the cause remanded for a new trial.

(68 Cal. 122)
PARKER v. BERNAL and others. (No. 11,018.)

Filed November 27, 1885.
1. AFFIRMANCE OF JUDGMENT-MOTION TO STRIKE OUT PART OF JUDGMENT.

After affirmance of a judgment and remittitur to the court below, a motion in the lower court to strike out portions of the judgment which had been affirmed is properly denied, where no good reason appears for granting such motion, and the judgment has disposed finally of all the questions involved in

the motion. 2. APPEAL FOR DELAY-PENALTY.

The appeal having been taken for delay, the judgment is affirmed, with dam-
ages.
Department 2. Appeal from superior court, city and county of
San Francisco.

Moses G. Cobb, for appellants.
Chus. H. Parker, for respondent.

« PreviousContinue »