p. 452a tract of land described as follows: “Being a part of the. Bancho Los Guillieos, commencing at a point on the southwesterly boundary-line of said rancho at or near the summit of “Bennett’s Peak,” distant about one hundred and fifty chains from the house of L. Spurr, which point of beginning is determined by the extension thereto of a line drawn through two oak trees standing in the plains of Los Guillieos; from thence running south sixteen degrees and ten minutes west, magnetic, to the initial or point of beginning; thonce north sixteen degrees and ten minutes east about one hundred chains; thence at right angles north seventy-four degrees and fifty minutes west a distance of about one hundred and twenty chains to the eastern boundary of the lands of one Wilson; thence south along the eastern boundary of the lands of said Wilson a distance of about ninety chains to the southwestern boundary-line of said Bancho Los Guillieos, and to the southeastern corner of the said Wilson’s land; thence south fifty-two degrees east along the southwesterly boundary-line of said Bancho Los Guillieos to the place of beginning, containing seven hundred and forty-five acres of land, more or less.”
The United States patent had been issued before the deed to Temple. On the trial, the plaintiff proved that the southern boundary of the rancho, as surveyed by the United States and as patented, included the premises in controversy. The defendant, after the plaintiff rested, offered to prove that in 1851 Peabody was county surveyor of Sonoma County, and made a survey of the rancho, and that by his survey the southern boundary of the rancho was located about one mile northerly from the southerly boundary as afterwards fixed by the United States survey and patent, and that the land claimed by the defendants was outside the Peabody survey, but within the limits of the United States survey. The court, on the objection of the plaintiff, ruled out the testimony.
The plaintiff had judgment, and the defendants appealed.
H. H. Haight, for the Appellants.
The court erred in refusing to allow the defendants to es
p. 453tablisk, by competent testimony, the facts in regard to the Peabody survey. Such testimony was competent for the purpose of showing the intention and understanding of the parties as to the boundaries of the land conveyed, and would in nowise have contradicted or varied the terms of the deed, or qualified thedescripfion of the land. In such case, the authorities are uniform as to the competency of parol testimony. The cases on this point are multitudinous, but we cite only such as are decisive. (Ferris v. Coover, 10 Cal. 589 ; Jenny Lind Co. v. Bower, 11 Cal. 95 ; Stanley v. Green, 12 Cal. 148 ; Hancock, v. Watson, 18 Cal. 137 ; Colton v. Seavey, 22 Cal. 496 ; Reamer v. Nesmith, 34 Cal. 624 ; Piercy v. Crandall, 34 Cal. 334 ; Dalby v. Booth, 16 Texas, 564; Waterman v. Johnson, 13 Pick. 261 ; Owen v. Bartholomew, 9 Pick. 526 ; Makepeace v. Bancroft, 12 Mass. 469 ; Kronenberger v. Hoffner, 44 Mo. 185 .)Thomas & Pressley, for the Respondent.
The court below erred in refusing to allow defendant to prove the fact relating to the Peabody survey. The deed from Hood and "Wilson to the Hudsons describes the land conveyed as follows: “Beginning at a point of the Arroyo de los Alamos, where it is crossed by the northern line of the G-uillicos Rancho; thence following down the centre of the Alamos Creek to its junction with the Santa Rosa Creek; thence running south parallel with the western line of said rancho to the southern boundary; thence along the southern boundary to a junction with a straight line running northeasterly, in a line with two oak trees in the valley, marked and branded and situate in the plain of the G-uillicos; thence north seventeen degrees and thirty minutes east from the magnetic meridian, through the aforesaid two oak trees, till reaching the northern? boundary of said rancho; thence following the northern boundary of said rancho in a westerly direction to the point of beginning. The above description to be according to a survey made by the county surveyor of Sonoma, in the year one thousand
p. 454eight hundred and fifty-one, the above-described property being a part of the rancho known as the Guillicos, as granted to Don Juan Wilson, in the year A. D. 1837, on the 13th day of November, by Juan B. Alvarado, and duly recorded in the archives of land titles in California,” etc.
The clause in the deed, “the above description to be according to a survey made by the county surveyor,” etc., clearly and distinctly incorporates into the deed the lines of such survey, if in fact a survey of the Guillicos Bancho was made in the year 1851 by the county surveyor of Sonoma County.
The offer of the defendant was to prove that in the year 1851 Peabody was the surveyor of that county; that he surveyed and ran the line of the Guillicos Bancho in that year, and that the southern line of the rancho as run by him would exclude the lands to which the defendant herein asserts title.
Judgment and order reversed and cause remanded.