Opinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
COUNSEL
A. J. King, and R. Dunnigan, for Appellants.
D. L. Russell, and W. S. Waters, for Respondents.
JUDGES: In Bank. Paterson, J. Sharpstein, J., Harrison, J., McFarland, J., and Garoutte, J., concurred.
OPINION
PATERSON, Judge
This is an action to recover possession of a tract of land in Los Angeles County. It is described in the complaint and in the judgment as follows: "All that certain tract of land in said county lying between Promenade Avenue on the east, and the line of ordinary high-water mark of the Pacific Ocean on the west, and between the lines of Ocean Avenue on the south, and Front Street on the north, according to the map of South Santa Monica, made by Rumble and Gaertner, surveyors,. .. . to which map reference is made for further description and certainty; the lines of said Ocean Avenue and of said Front Street being considered, however, as extended westerly to the said line of ordinary high-water mark on the Pacific Ocean."
Judgment was entered in favor of the plaintiffs, and the defendants have appealed from the judgment, and from an order denying their motion for a new trial.
The only point made by appellants is, that the findings are contrary to the evidence. There are no specifications in the statement as to the insufficiency of the evidence, but as no objection has been made on that ground, we proceed to consider the merits of appellants' contention.
It is claimed by appellants that neither the patent of the rancho La Ballona, nor the deed of Nancy T. Lucas, includes in its description any of the land in controversy. Whether this contention be sound or not, depends upon the question as to the proper location of station 31 of the Ballona rancho. Appellants contend that it is located in an arroyo on the bluff above the seashore.
The question was one of fact to be determined by the court on all the evidence in the case. In finding that plaintiffs were the owners of the land in controversy, the court necessarily found that the station was not on the bluff, but on the seashore; and we think the finding is supported by the evidence.
The northwest corner of the Ballona rancho is identical with the southeast corner of the rancho Santa Monica y San Vicente. The description of the land in the patent of the Santa Monica rancho commences with the words, "Beginning on the seashore at station No. 31 of the Ballona rancho." The decree of confirmation recited in the patent of the Ballona rancho describes the land as "a certain tract of land in Los Angeles County, west of the city of Los Angeles about three leagues, and bordering on the seashore, called the Ballona." The plat referred to in the patent shows that the northwest corner of the rancho is on the seashore, as stated in the patent of the Santa Monica y San Vicente, and all of the agreements, decrees, and conveyances through which plaintiffs deraign title tend to establish [29 P. 328] the same fact. Wright, a witness for plaintiffs, testified that he was a surveyor, and had surveyed the land; that the west line of the rancho, as shown in the patent, survey, and map, was not the same as it was shown to be in the survey and map of South Santa Monica; that "the west line of the patent includes the land in controversy." Fisher, a surveyor called on behalf of defendants, testified on cross-examination that "the boundaries, as called for in the title deeds of plaintiffs (which are here now shown), embrace and include the land in controversy, the west line, as called for in said title, being the Pacific Ocean, and the lands in controversy being east of and above the line of ordinary high-water mark of said Pacific Ocean. If the entire west line from the point where the southern boundary of the La Ballona intersects or touches the Pacific Ocean was run in accordance with the calls, courses, and distances as called for in the patent and survey of said La Ballona rancho, to station 31, its northwest corner, then, in that case, the land in controversy would lie east of and above said line so run." All the witnesses testified that if station No. 31 were located at ordinary high-water mark on the seashore, as called for in the survey and patent, and the west line of the rancho were run according to the calls, courses, and distances given in the survey, all of the land in controversy would be east of and above said west line; and that if the lines of Ocean Avenue and Front Street were extended westerly to the line of ordinary high-water mark, all the land in controversy would lie between the lines of said Ocean Avenue and Front Street so extended, and above and east of the line of ordinary high-water mark.
It is true, four of the five witnesses testified that station 31, according to the courses and distances given in the survey, is located in the arroyo on the bluff; but the most that can be said is, that there is a conflict in the evidence. Where there is a conflict as to the true location of a station which is described as a natural monument, and is located in a different place by the courses and distances, the natural monument will control.
It is claimed by appellants that the deed from Andres and Rafael Machado to Nancy T. Lucas did not embrace the land described in the complaint. This contention, also, is based upon the assumption that the southeast corner of the Santa Monica y San Vicente and the northwest corner of the Ballona is in the arroyo, and not on the seashore. The deed and the decree correcting the same (entered long prior to the commencement of this action), in describing the land, both say: "Commencing at a point on the seashore of the Pacific Ocean," etc.
The description of the land sought to be recovered was properly amended. The assumed extension of the lines of the streets fixed with certainty the exterior boundaries of the tract, and rendered it unnecessary to locate them by courses and distances.
The affidavits set out in the transcript are not authenticated, as required by our rule, and need not be considered. A glance, however, is sufficient to show that they allege matters clearly incompetent.
Judgment and order affirmed.