Opinion
Department One
Appeal from a judgment of the Superior Court of Fresno County, and from an order denying a new trial.
COUNSEL:
Garber, Boalt & Bishop, Firman Church, and J. P. Meux, for Appellant.
George L. Hood, and W. S. Crawford, for Respondent.
JUDGES: Haynes, C. Searls, C., and Vanclief, C., concurred. Garoutte, J., Harrison, J., and Paterson, J.
OPINION
HAYNES, Judge
This action is brought by plaintiff to quiet title to certain lots in the Central Addition to the city of Fresno. The defendant had judgment, and the plaintiff appeals from the judgment, and an order denying his motion for a new trial.
The half-section line running east and west through section 4 is the north boundary line of the city of Fresno. Plaintiff's lots lie on the north side of this line, and defendant's on the south side.
The point in controversy is the location of this half-section line, and, upon the trial, that point turned upon the location of the half-section corner on the east line of section 4.
Teilman surveyed and platted Central Addition, and ran the half-section line, and plaintiff claims to this line. The court found the line to be twenty-four feet north of the line so surveyed.
In making this survey, Teilman found a stake which he assumed and believed to be the half-section corner. Five other witnesses, at least three of them being professional surveyors, testified that the corner from which Teilman made his survey was a "charcoal" or "government" corner; and there was no evidence tending to show that a stake or corner had ever been seen at a different place in that vicinity. This testimony was prima facie sufficient to establish it as a government corner, and to justify a finding to that effect.
The finding of the court was based on a survey and measurement from the southeast corner of section 9, a distance of a mile and a half south of the stake in question.
A ditch or canal had been dug on the south line of section 9, and for several miles east of that section. Defendant's witness, who dug this canal, testified that he took up the stakes and set them on the south side of the canal, but the distance they were removed is not definitely shown. But assuming that the southeast corner of section 9 was definitely established, a survey from that point could be used but for one purpose, viz., to show that the half-section corner in question was not in fact a government corner. It could not be used to show that the government surveyor made an error in placing it there.
In Hall v. Tanner , 4 Pa. St. 244, 45 Am. Dec. 687, it was said: "It has ever been held that the marks on the ground constitute the survey; that the courses and distances are only evidence of the survey." This court, in Ferris v. Coover , 10 Cal. 629, said: "Preference is given to monuments, because they are least liable to mistake"; and in the same case, quoting from Fulwood v. Graham, 1 Rich. 497, said "that in locating lands we are to resort, -- 1. To natural boundaries; 2. To artificial marks; 3. To adjacent boundaries; 4. To courses and distances; but it has never been said that each of these occupied an inflexible position. It sometimes might occur that an inferior means of location might control a higher, when it was plain there was a mistake ."
Evidence based upon courses and distances from other known points is admissible to fix a corner, where no corner is found, but never to change the location of an original corner when found.
It seems to have been considered that because town ships are subdivided by commencing at the south and east sides, that therefore points to the south are more reliable than those on the north; but such is not the case. A survey by courses and distances from the nearest established corner is least liable to error. The northeast corner of section 4 is upon the north line of the township, and that corner is not disputed. Several measurements from that corner to the half-section corner in question made the distance 2,623 [32 P. 594] feet, whilst the government field-notes call for 2,624.8 feet, -- a difference of only 1.8 feet from the corner found by Teilman.
The conflict of testimony cannot be said to be material. The evidence of defendant, based on course and distance, being of a lower order, because of its greater uncertainty, cannot be said to raise a material conflict with the higher order of proof, unless it demonstrates to a reasonable probability that the corner as found now upon the ground is not the corner established by the government, and this it fails to do.
The line found by the court is erroneous in another particular. The half-section corner on the west line of section 4 is not disputed, and that corner is shown to be 2,619 feet south of the northwest corner of the section. Assuming that the north line of the township is a due east and west line, as we must, in the absence of evidence to the contrary, the half-section line found by the court, starting from a point twenty-four feet north of the stake in the east line, and running "due west," would intersect the west line of the section twenty feet north of the half-section corner, whilst that line should be drawn from one corner to the other, regardless of a variation from the due east and west course.
If the sixth and seventh findings are to be understood as finding that defendant had been for more than five years in possession up to the line fixed by the court, such finding cannot be sustained.
Defendant testified that "all this strip of land in controversy has been lying out open, unfenced, and uncultivated." And again: "I never claimed anything except what was actually embraced in fractional block 340; that is all I ever claimed, or claim now." It does not appear that either party had actual possession of the strip in controversy, whilst the constructive possession of each extended only to the true line.
I think the findings discussed herein are not justified by the evidence, and that the judgment and order appealed from should be reversed, and a new trial granted.
For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed, and a new trial granted.