Paul v. Silver

Headnote

In an action of forcible entry and detainer, the complaint described the premises as “ abont ten rods square, situated- within and comprising the north-westerly comer of that certain piece or parcel of land, bounded and described as follows, to wit: ” (the complaint then goes on to give the metes and bounds of a tract containing one hundred and forty-six acres). “ The said ten rods square being situated from twenty to fifty feet, more or less, south-easterly from the house of defendant, and near the gate aforesaid, and near the junction of the San Bruno turnpike road, with the road leading from the city of San Francisco to Hunter’s Point.” Said gate was where this last road passed through. The proof, among other ^things, showed this ten rods to be called the north-easterly instead of the north-westerly corner of the tract. The judgment for plaintiff followed the description in the complaint. Defendant appeals: Hdd, that the variance in the description of the premises did not prejudice appellant; that the question was one of identity, and the fact that the corner of the small tract was called the north-easterly instead of the north-westerly corner, was itself insufficient to defeat the action, if the other and more definite marks of description sufficiently indicated and identified the premises.

This Court will not set aside the findings of the Court below on conflicting proofs, especially in regard to the value of rents, or damage to property, both being of uncertain ascertainment.

Where, in an action of forcible entry and detainer, the judgment is for the possession of the premises, and ninety-four dollars, treble damages, besides costs, —the title not being involved—query, whether the Supreme Court has jurisdiction of an appeal from the County Court.

Appeal from the County Court of San Francisco.

Forcible entry and detainer, tried before the Court without a jury.

The complaint avers: “ That heretofore, to wit, on or about the sixteenth day of March, A. D. 1859, and for a long time prior thereto, the said plaintiff was in the lawful, actual, peaceable and quiet possession of the following described premises, situated in the city and county of San Francisco, to wit: about ten rods square, situated within and comprising the north-westerly corner of that certain piece or parcel of land bounded and described as follows, to wit: ” (the complaint then goes on to describe a tract of land containing one hundred and forty-six acres). “ The said ten rods square being situated from twenty to fifty feet, more or less, south-easterly from the house of defendant, and near the gate aforesaid, and near the junction of the San Bruno turnpike road with the road leading from the city of San Francisco to Hunter’s Point.” Defendant is charged with committing forcible entry and unlawful detainer of said ten rods square.

In the description by metes and bounds a gate is mentioned, through which the Hunter’s Point road passes. The gate is at the junction of the two roads.

It was shown on the trial, that the ten rods square was called the north-easterly, and not the north-westerly corner of the one hundred and forty-six acre tract, and the corner on which the locus in quo is situated is the corner next to defendant’s house and the comer where the trespasses were committed. Between the two corners runs the San Bruno turnpike road. Aside from the variance as to corners, the evidence as to the locus maintained the averments in the complaint.

Plaintiff had judgment below for the possession of the premises as described in the complaint, and for ninety-four dollars treble damages, besides costs. Defendant appeals.