Weaver v. Howatt

This is an appeal from a judgment in favor of plaintiffs. It was taken less than sixty days after the judgment was rendered, and, consequently, the evidence is subject to review.

In form the action is to quiet title to land, but the sole object of the suit is to determine the location of the boundary line between the lands of plaintiffs and the lands of the defendant.

The location of this common section line was fixed by the official survey of the United States from whom both parties derive title. The court found that the monuments set by the United States surveyors at the common corner of sections 1, 2, 11, and 12, to show the position of this line, have disappeared and that the original location thereof could not be ascertained. The same finding was made as to the quarter section corners on the line dividing sections 1 and 12 from sections 2 and 11. The north common comer of sections 1 and 2 and the south common comer of sections 11 and 12, were-accurately ascertained and located by the government monuments there set. No attempt was made to locate the position of the east and west line in question by reference to monuments set elsewhere thereon, as, for instance, at the northeast corner of section 12 on the range line, or at the northwest corner of section 11. It was apparently agreed that those corners could not be found. The court found, in effect, that the north and south line actually run by the government surveyors between the common corner of sections 11,12,13, and 14, and the common corner of sections 1, 2, 35, and 36, cannot be retraced, found, or located on the ground by any of the monuments set thereon, or by any of the natural objects mentioned in the field-notes, and that the distances therein given between the natural objects mentioned are not accurate. Having decided

The propriety of this mode of adjusting boundary lines of United States sections and sectional subdivisions, in a case where the places where the original monuments were set cannot be located on the ground, and the objects referred to in the record of the official survey furnish no means of finding the actual location of the original lines or corners, is not seriously disputed. The defendent’s claim is that this is not such a case and that there were data in the notes and maps from which the court could and should have found and declared the actual position or location of the line in controversy. -If this is trae, of course the rule for re-establishing lost comers or lines does not apply. (Yolo Co. v. Nolan, 144 Cal. 448 , [ 77 Pac. 1006 ].) The decision of the ease therefore depends on the question whether from the records of the official survey, that is the maps and field-notes, and the evidence as to the present conditions and positions of natural objects, the position of the line can be lawfully located and should be fixed at a point more favorable to defendant. The maps and field-notes constitute parts of the descriptions in the original patents. (Foss v. Johnstone, 158 Cal. 128 , [ 110 Pac. 294 ], and cases cited.) These monuments and objects, so far as they can be located, are controlling and usually prevail over courses and distances. (Code Civ. Proc., sec. 2077; Kimball v. McKee, 149 Cal. 450 , [ 86 Pac. 1089 ].)

The following map shows appproximately the outlines and relative positions of the tracts and some of the important markings as shown on the map returned with the government survey:

The dotted lines are not shown on the government map.

The line upon which the chief dispute arises is the line from A to B on the map, and dividing sections 1 and 12 from sections 2 and 11. The section lines of the official survey were run by S. W. Foreman in July, 1875. In running the aforesaid line A", B, he began at the south common corner of sections 11 and 12 and ran north to the township line. The following is a copy of his field-notes of the survey of that line.

“North bet. secs. 11,12, Var. 18° 30' E.

40.00—Old 14 sec. post 4 ft. long and 4 in. dia., 4 in. stone mound made mound 4% ft. at base and 2 ft. high for % sec. cor. No trees near. Brushy.

55.00 Begin steep descent.

80.00 Old sec. cor. post 4 ft. long and 4 in. square and made mound 4% ft: at base and 2 ft. high, with pits 18x18x12 in. for the cor. to sees. 1, 2, 11, 12.

No trees near.

Land hilly, N. W. slope.

Soil 2d rate.

Timber fir, oak, redwood & Madrone.

North on a random line bet. secs. 1, 2, Ya. 18° 30' E. 11.85 A creek 20 Iks. wide runs N. W.

13.00 Enter bottom land bears E. & W.

20.60 To a point 10 links E. of old meander post on left bank of Eel River bet. secs. 1, 2, from which post I -run a base West 300 Iks. to a point from which the old meander post on right bank of Eel River on line bet. secs. 1, 2 bears N. 19%° E. which gives 8.59 chs. for the distance across the river, to which add 20.60 chs. the distance S. of river gives.

29.19 To a point 10 Iks. E. of old meander post on right bank of river.

40.00 Set temporary % sec. cor.

80.50 Intersect the N. Bdy. of Tp. 40 Iks. E. of the cor. to sees. 1, 2, 35, 36, which cor. agrees with the notes furnished by the office and from which.I run S. 17° E. on a true line bet. secs. 1, 2.

40.50 Set a *4 sec. post 4 ft. long and 4 in. dia. in old stone mound made 4% ft. at base and 2 ft. high.

No trees near.

51.31 Old meander post 4 ft. long and 4 in. dia. in a mound 4 ft. at base and 2 ft. high with pits 18x18x12 in. and from which old bearing tree an alder 10 in. diam. bears N. 18° W. 86 Iks. dist.

59.90 Old meander post on left bank of Eel River on line bet. secs. 1, 2, with mound and pits.

80.50 The cor. to secs. 1, 2, 11, 12.

Land broken, hill slopes N. & S. to River.

Soil 2d & 3d rate.

Timber, oaks, fir, redwood and madrone.”

The distances given in these notes as those at which the natural objects were reached are all found to be inaccurate. The total length of the line was not 160.50 chains. It was only 151.01 chains, or 9.49 chains short. The distance from the south end, the common corner of sections 11,12,13, and 14, to the place marked “begin steep descent,” was not 55 chains. It was 56.10 chains. The place marked “enter bottom land” was not a total distance of 93 chains from this corner. It was only 65.42 chains, as the court found, a difference of 27.58 chains. The total distance to the south bank of Eel River

The creek shown on the official plat as crossing the south line of section 12 east of the southwest corner and running northerly through the west half of the section and thence into section one and through the defendant’s land to Eel River, does not exist as delineated. It could not run along the slope between the point where the steep descent begins and the bottom land, as the notes would have it. The actual course of the creek that crosses the south line of section 12 is shown on the map attached hereto by the dotted line crossing the west line of section 12 at the place marked “C,” a point only 41.60 chains north of the south common corner of sections 11 and 12, and according to the official measure, 50.25 chains south of the place referred to in the field-notes by the words “11.85. A creek 20 Iks. wide runs N. W.” It is also south of the “steep descent” mentioned in the notes at 55 chains. No such creek as this is mentioned in the field-notes of the survey of this line. On the notes of the survey of the south line of section 12, Sonoma Creek is mentioned as crossing the line 6.50 chains east of the southwest corner. The government surveyor does not make these official plats. They are prepared in the general land-office at Washington. (U. S. Rev. Stats., sec. 2395, [U. S. Comp. Stats. 1901, p. 1471].) It is suggested as a possible explanation, that the draughtsman supposed that the “creek” noted as crossing the line between sections 1 and 2 was the same creek as Sonoma Creek crossing the south line of section 12 and delineated it on the plat accordingly. It is clear from the evidence, at all events, that the call for a creek in the field-notes on the line of sections 1 and 2, is a false call and that it should be rejected as a means of locating the division line in question.

The effect of the judgment of the court dividing the common line of the four sections arbitrarily into four equal parts, regardless of the natural objects referred to in the field-notes, is to place the section corner, locating the line dividing plaintiffs’ land from that of the defendant, at a point in the “bottom

We do not think the evidence justifies such wholesale disregard of the official survey. While it is true that the errors in the field-notes and plat make it impossible to locate the exact spot fixed by the official survey as the common corner of sections 1, 2, 11 and 12, in the absence of the monument set to mark it, yet there. is ample evidence to show that it was not fixed at or near the place selected by the court, upon its theoretical subdivision of the line. It is not the province of the court to determine where the comer should have been fixed. This is not an action to vacate the government survey. It must be assumed that the line was measured and the monuments set. Their positions, as set, fix the rights of the parties, regardless of the inaccuracy of the measurements and the errors in distance found in the field-notes. The trial court must ascertain, as near as may be, where this monument was set by the government surveyor. If the exact spot cannot be found, it must, if possible, decide from the data appearing in evidence its approximate position, and the proportional method is to be used only when no other reasonable method is possible and it must be so used that it does not contradict or conflict with the official data that are not impeached, and which, when not impeached, confine the actual position within certain limits. The application of the proportional method must, in that case, be also confined to the same limits.

The country between the corner of sections 11, 12, 13, and 14 and the place of “steep descent,” and also between Eel River and the north township boundary is very hilly and rough. It is stated in the evidence, without contradiction, that the discrepancies- in distance between the official survey and the private survey, between these points, 1.10 chains in the first instance and 2.33 chains in the other, is not an unusual difference between successive surveys over such ground. The distance to the place where the steep descent begins was therefore stated in the field-notes with substantial accuracy. The field-notes state that at the common corner there are no trees near, that the soil.there is second or third rate, that the land is hilly, that it is on a northwest slope, and that what timber there is near consists of fir, oak, redwood, madrone, and brush or chaparral. They also show that the government surveyor

These natural objects and conditions still exist and they are all found a considerable distance south of and not at the place in the redwood forest selected by the court. They indubitably show that the court’s location is wrong and that the true corner must be located farther south, where it is not in a redwood forest, nor in first rate soil nor in distinctly “bottom land.” The distance of 20.60 from the corner to the river may be incorrect. Under the rule established, it must give way, as evidence of location, to the natural objects mentioned in the field-notes as descriptive of the true location, so far as the two conflict. They do describe the actual location with some certainty and within ascertainable limits. The false calls and inaccurate measurements being rejected, those objects referred

■The judgment is reversed.

[Angellotti, J., and Sloss, J., concurred.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank.