Curtis v. Upton

The above-entitled actions involve the same controversy. Case No. 7095 is an action in ejectment and the plaintiffs J. F. D. Curtis and H. L. Curtis appeal from the judgment and from an order denying their motion for a new trial. In case No. 7096 the same persons appeal from an order denying their application, as successors of A. D. Easkoot, for the issuance of a writ of restitution upon a judgment entered in said action in favor of said Easkoot against the plaintiff and intervener. We will consider the cases in the order of their number on our calendar.

1. No. 7095. CURTIS v. UPTON.

The complaint in this case alleges that plaintiffs, “by themselves and by their predecessors in interest,” were, on Novem

“Beginning at the post placed by the United States Surveyor at the southerly corner of that portion of the Baulinas Rancho, which lies on the east side of Baulinas (also spelled Bolinas) Bay, said post being South, 28%i° Bast, fifteen and 80/100 (15.80) chains from the Northwest corner of the Northeast quarter of section No. 33, in Township No. 1 North, Range No. 7 West, M. D. M., said post also being South 51%°, West six chains 30 links, and thence South 38%°, East fourteen (14) chains from the house of Captain Baskoot as it stood in the month of October, 1858, thence following the line of said Rancho, as described in the patent therefor executed by the United States of America to Gregorio Briones, and recorded in the office of the Recorder of said County of Marin, in Liber A of Patents, at page 146, and along the line of ordinary high water mark on the Northeasterly shore of said Baulinas Bay as it existed in A. D. 1858, North 38%l°, West twenty (20) chains, thence crossing the tide lands in said Baulinas Bay and the sand bar and beach adjoining same on 'the Southwest, South 51%°, West fourteen (14) chains more or less to the line of low water of the Pacific Ocean on said beach, thence along the line of said low water of the Pacific Ocean South 60%° Bast twenty-three (23) chains, and thence North 55%° East five (5) chains more or less to the point of beginning. Being portions of Marin County Tide Land Surveys Nos. 10 and 34.”

It further alleges that the defendants without right entered upon said land, ejected the plaintiffs therefrom, and have ever since wrongfully withheld possession thereof. It is further alleged that on November 9, 1905, in a certain action in the superior court of Marin County, being the action involved in the above-entitled case No. 7096, a judgment was duly given and made that said A. D. Baskoot was the owner in fee and possessed of the two tracts of land referred to in the above description as “Tide Land Surveys Nos. 10 and 34, ’ ’ and that neither the said A. H. Upton nor said Nathan H. Stinson had any right, title, or interest in or to said parcels, or either of them; that afterward the plaintiffs succeeded to the title of said Baskoot to said lands, and that said Nathan H. Stinson thereafter died and Amos H. Stinson has been appointed executor of his estate.

“Survey No. 10 State Tide Lands, Marin County, Township No. 1 North Range No. 7 West, M. D. M., sections Nos. .28, 29 and 33, fractional portions of said sections more particularly described in the field notes of said surveys as follows: Beginning at the post placed by the United States Surveyor at the southerly corner of that portion of the Baulinas Rancho which lies on the east side of Baulinas Bay, said point being S. 28%° E. 15.80 chains from the Northwest corner of the Northeast Quarter of section 33, Township No. 1 North, Range No. 7 West, M. D. M., thence following the line of said rancho N. 38%° W. 72.20 chains, thence crossing the Tide Lands S. 42%° W. 20 chains to sand bank, thence S. 54° E. 71.70 chains to the place of beginning. Containing 70.17 acres.”

“Survey No. 34 State Tide Lands, Marin County, Township No. 1 North, Range No. 7 West, M. D. M., section No. 33, fractional portions of said section being more particularly described in the field notes of said survey as follows: Beginning S. 28%° East 15.50 chains from the Northwest corner of the Northeast Quarter of section 33 Township No. 1 North, Range 7 West, M. D. M., thence North GO W. 16.36 chains, thence crossing the beach of the Pacific Ocean to low water 5. chains, thence along the Pacific Ocean at low water S. 60%° East 16.36 chains, South 47%° East 35. chains, thence crossing the beach to high water mark 5. chains, thence North 47%° West 35. chains to the place of beginning. Containing 16.45 acres.”

Issue was joined upon the allegations that the plaintiffs were the owners of the land first described in the complaint, that the same or any part thereof was a portion of said tideland surveys, or either of them, that the defendants, or either of them, had ousted the plaintiffs without right from said land or any part thereof, and that the plaintiffs are, or ever have been, the owners in fee or otherwise of any part of said surveys. With respect to- the judgment pleaded in the complaint, the answer alleges that it is void because of the uncertainty of the description therein given of the land adjudged to belong to Easkoot.

The court found that the allegations of the complaint to the effect that the plaintiffs or their predecessor in interest,

As conclusions of law upon the findings the court stated that the plaintiffs were not the owners of, nor entitled to the possession of, nor in possession of, the tract of land attempted to be described in the complaint, and that the defendants were entitled to a judgment that the plaintiffs take nothing by their said action.

Judgment was thereupon given that the plaintiffs take nothing by their action herein, and that they were not the owners of, nor seised in fee of, nor possessed of, nor entitled to the possession of, the tract of land described in their complaint, “which said tract of land,” it proceeds to declare, “is located in Bolinas Township, in the county of Marin, state of California, and bounded and particularly described as follows:

“Beginning at an iron bolt, or pipe, described in the findings in this case as the ‘second iron bolt,’ which was driven in the ground on the 25th day of August, 1910, by George M. Dodge, a civil engineer and surveyor acting for and on behalf of the plaintiffs in the above-entitled action, which said iron bolt, or pipe, is located as follows: Commencing at an iron bolt which was, on said 25th day of August, 1910, set by the said George M. Dodge at a point upon the site of the house of

Captain Easkoot as it stood in the month of October, 1858, as the site of said house was established by the testimony of Benjamin G. Morse, Peter Crane and Stephen A. Richardson, which testimony was taken at the trial of the above entitled cause, said iron bolt, marking the site of Captain Easkoot’s house, being located upon the hill at the north and northeast of the ‘arenal’ or ‘sandspit’ dividing Baulinas Inner Bay from the Pacific Ocean and running thence from said iron bolt marking the site of Captain Easkoot’s house, South 51i/2° West 6.30 chains and thence South 38%° East 14 chains to said second iron bolt or pipe and the point of beginning of the lands herein described: Running thence from said second iron bolt, or pipe, North 38%° West 20 chains to a point: thence South 51%° West 14 chains to a point and thence South 6OI40 East 23 chains to a point and thence North 55]40 East 5 chains more or less to said second iron bolt or pipe above referred to, the point of beginning.”

The following map shows approximately the relative positions of the Bolinas Ranch, the Bolinas Bay or Lagoon, and the sandspit, as they appear on the map accompanying the patent from the United States to Briones for said ranch. It also shows the positions of the two tide-land surveys:

The words “or lagoon” are not in the patent or survey or on the map.

The patent of the Baulinas Ranch, now usually spelled Bolinas, was introduced in evidence, including the map and field-notes of the survey thereof, to which the patent refers. These documents show that the southerly comer of the part of the Bolinas Ranch lying on the east side of Bolinas Bay was established on the shore of Bolinas Bay ‘ ‘ opposite a long sand-bar or ‘arenal’ whose general course is N. 60° W. slightly curving to the left, ’ ’ and that the surveyor there set a post marked “T. B. 208.” This corner is the point of beginning of tide-land survey No. 10. It therefore fixes the position of that survey. The field-notes state that survey No. 10 includes “that tract of tide-land at the southeastern extremity of Bolinas Bay lying between the Baulinas Rancho and the sand-bank which divides Bolinas Bay from the Ocean.” The title to tide-land vests in the state. State ownership is also shown of survey No. 34, since its beginning point, according to the calls, is situated N. 28y2° W. 30 links from the comer of the ranch, and its lines cross the beach and cover the land between the high and low tide lines of the beach fronting on the Pacific Ocean. The state patents were introduced in evidence showing that in 1871 the state granted to A.

The description of the land sought to be recovered, as set forth in the complaint, shows that parts of it are included in the two surveys, the title whereof was, as above shown, vested in plaintiffs. With respect to the parts so included, the findings and judgment that plaintiffs are not the owners thereof are, on the face of the pleadings and by the terms of the patents introduced in evidence, clearly erroneous.

The state patents purport to convey state tide-lands only, and they could convey none of the upland of the sandspit, for, as it was neither school-land nor swamp-land, the state had no title to that upland. The terms of the descriptions of the surveys imply that no upland was intended to be included therein and they should be construed to embrace only tide-lands, to which the state held title. The plaintiffs therefore failed to establish a record title to this upland along the center of the sandspit.

This action was begun on October 28, 1910. The survey made by Dodge on August 25, 1910, referred to in the judgment, purporting to establish and mark on the ground the precise position of the southerly corner of the Bolinas Ranch, was made for the plaintiffs, apparently in preparation for beginning this action. Plaintiffs’ attorneys in drawing the complaint may have supposed that the description set forth therein bounded the tract included in the Dodge survey. But the complaint makes no reference to that survey or to the iron bolt set by Dodge to mark the comer. The description in the complaint fixes the southerly comer of the portion of the Bolinas Ranch lying on the east side of Bolinas Bay as the beginning point and ending point of the boundaries of the tract of which recovery is asked. The answer denies that the defendants have ousted plaintiffs of the possession of the parcel, described or any part thereof. This put in issue the true position on the ground of the parcel described, it

The judgment-roll in Upton v. Easkoot was introduced in evidence. The complaint of Upton alleged that he was the owner of the land included in the sandspit, describing it by metes and bounds. Stinson’s complaint in intervention alleged that Stinson was the owner of the sandspit. Each asked to have his title thereto quieted against all the other parties to the action. Easkoot answered alleging that he owned tide-land surveys Nos. 10 and 34 above described, that

The judgment declared that Upton take nothing by his action, that Stinson should take nothing by his complaint in intervention, that Easkoot was the owner of said tracts of land designated as tide-land surveys Nos. 10 and 34, particularly describing them, and of the other tide-lands claimed in his answer, that neither Upton nor Easkoot had any right, title, or interest in the same, or any part thereof, and that they each be enjoined from asserting any claim thereto.

This judgment is conclusive in favor of Easkoot and in favor of plaintiffs herein as his successors in interest and privies in estate, and against both Upton and Stinson upon all the points decided thereby. “A former judgment between the parties to an action is conclusive in all subsequent actions involving the same questions, not only as to matters actually decided in the former controversy, but as to all matters belonging to the subject of the controversy and properly within the scope of the issues which also might have been raised and determined.” (Southern Pac. Co. v. Edmunds, 168 Cal. 418 , [ 143 Pac. 598 ]; Koehler v. Holt Mfg. Co., 146 Cal. 337 , [ 80 Pac. 73 ].) The former judgment operates in favor of or against privies in estate of the original parties, and it “is none the less a bar for the reason that it is erroneous.”

It appears from the evidence that the post set in 1858 to mark the southerly corner of the Bolinas Ranch and all monuments of the tide-land surveys and all traces thereof have long since disappeared. The position of the southerly corner of the ranch can only be ascertained by resort to other calls of the patent and survey. Dodge attempted to locate it by retracing the line from the collateral call to Easkoot’s house, the position of which he determined from statements of persons once familiar with it. The court below found that Dodge did not locate the true corner. Proceeding apparently upon the theory that the plaintiffs were bound to prove the true position of said corner and that if they failed to do so, their patents and the judgment in Upton v. Easkoot were all ineffectual to establish any right to the land claimed, the court gave judgment against them. This theory might possibly be correct, upon the question of an ouster, if the plaintiffs had produced no evidence of the position of the comer and none had been given on behalf of the defendants. But the testimony of Dodge of his survey retracing the line, according to the courses and distances given in the original survey, back from the site of the Easkoot house to its beginning point was legal evidence of the true site of the corner. In the absence of countervailing evidence, it would have been sufficient proof thereof. (Weaver v. Howatt, 171 Cal. 308 , [ 152 Pac. 925 ].) It was rejected as proof, because the resurvey by Richardson, starting from a known natural monument of the original survey on the northeasterly side of the ranch and verified by

The question of the effect of gradual accretions may become important with regard to the lines of surveys Nos. 10 and 34 bordering upon the sandspit. Recently, in Strand Imp. Co. v. Long Beach, 173 Cal. 765 , [ 161 Pac. 975 ], the court decided that the common law that gradual accretions from natural causes to land abutting upon water belong to the owner of the upland applied to lands fronting upon tidal waters and to the shores of the ocean. It may be that accretions to the inner side of the upland of the sand-bar have covered a large part of survey No. 10 and have raised it above the high-tide line. The effect of the judgment in Upton v. Easkoot is that neither Upton nor Stinson can claim any title to the sandspit, as against plaintiffs here. Having no right to the sandspit, they could not claim accretions thereto.

We now proceed to the consideration of case No. 7096.

2. No. 7096. UPTON v. EASKOOT.

This is the case in which, as stated in the previous discussion, judgment was given in favor of Easkoot against the plaintiff, Upton, and the intervener, Stinson.

In October, 1910, after the death of Baskoot and after his estate in the lands was distributed to J. P. D. Curtis and H. L. Curtis, they filed a notice of motion for the issuance of a writ of restitution upon said judgment against said Upton and the executor of Stinson, who had died in the meantime. The ground of the motion was that after the entry of said judgment said parties had, contrary to its terms, entered into possession of portions of the land therein adjudged to Baskoot and were holding possession thereof and claiming title thereto. The portion which they were so claiming is the tract sought to be recovered in Cwtis v. TJpton, No. 7095. The description thereof is set forth at the beginning of part No. 1 of this opinion. The court below denied the motion and refused to order the writ. Prom this order the said moving parties appeal.

Before the hearing of the motion the moving parties, Curtis and Curtis, began the action, the subject of the first part of this opinion, for the recovery of said parcel in dispute. The motion and the action were heard and tried together upon the same evidence. The court denied the motion upon the same grounds upon which it refused to give judgment for the plaintiffs in the aforesaid action, that is to say, because it was, as it believed, unable to identify upon the ground the exact position of the southerly corner of the Baulinas Ranch. What we have said in the discussion of that ease is applicable here, and we need not repeat it in full. There was evidence from which the position of the corner, and therefrom the position of the land in dispute, could have been ascertained with reasonable certainty, and it was the duty of the court to determine the same and make its order accordingly.

In case No. 7095, the judgment and the order denying a new trial are reversed.

In case No. 7096, the order denying the motion for a writ of restitution is reversed.

Sloss, J., Lawlor, J., Melvin, J., Henshaw, J., and Angellotti, C. J., concurred.