Appeal from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial.
J. B. Hall, and W. E. Dudley, for Appellant.
F. T. Baldwin, J. C. Campbell, and Edward I. Jones, for Respondent.
JUDGES: In Bank. McFarland, J. Sharpstein, J., Beatty, C. J., Works, J., and Thornton, J., concurred. Paterson, J., being disqualified, took no part in the decision of this cause.
This is an action of ejectment to recover a strip of land lying along the boundary line between two coterminous owners. The verdict and judgment were for defendant. Plaintiff appeals from the judgment, and from an order denying a new trial.
Plaintiff owns a tract of land which is generally described as the southeast quarter of section 26, according to a plan of survey, called the Weber survey, of a grant called the Campo de los Franceses, and defendant owns the southwest quarter according to the same survey, -- the two tracts adjoining each other in (practically) the same manner in which subdivisions under United States government surveys adjoin. The main issue in the case was, Where is the true boundary line between said two quarter-sections? Both parties hold under Charles W. Weber, their common grantor, who procured said survey to be made, and to whom the grant was patented. At the trial, the plaintiff offered, by witnesses, to prove that said Weber, before he conveyed to defendant, and when the owner of all the land, did, while he was on said land, point out certain posts and points as being on the line between said quarter-sections, and made certain declarations concerning the boundaries thereof. To this testimony defendant objected as incompetent, irrelevant, and hearsay; the objection was sustained, and plaintiff excepted. This ruling was clearly erroneous. It is the established law that in a case of a disputed boundary line, which is in doubt, the declarations of a grantor, at or before the time of the sale and conveyance, are admissible against both him and the parties claiming under him. (Code Civ. Proc., sec. 1849; Stanley v. Green , 12 Cal. 148; McFadden v. Wallace , 38 Cal. 51; McFadden v. Ellmaker , 52 Cal. 349.) And it would be useless to argu e that the offered evidence was not material [21 P. 843] and important. For this reason the judgment must be reversed.
Most of the other points made by appellant go to the sufficiency of the evidence to justify the various findings of the jury, and that said findings are contradictory; but it is not necessary to discuss these points, as a new trial must be granted for the reason above stated. (It may be remarked that the special issues and the instructions asked were unnecessarily numerous and long; and that each party seems to have tried the case upon the theory that he would lose, and should therefore set every possible trap for a reversal.)
We see no objection to the evidence of the survey of 1878, and the acts and declarations of plaintiff in regard to it.
The instructions given at request of plaintiff were very full, and those having been given, we see no error in the refusal to give instruction c, asked by plaintiff, or in giving instructions 2 and 7, asked by defendant. Instructions a and b, asked by plaintiff, were refused, of course, because they referred to certain acts and declarations of Weber, and the testimony on that subject had been ruled out. Perhaps on another trial some instruction on that subject may be proper.
Judgment and order reversed, and a new trial granted.