Clark v. Stotts

PEEK, J.

This is an appeal by defendants from a judgment quieting title in plaintiff, and awarding damages for timber removed by defendants from the property.

Both parties claim to deraign title through one Pillsbury. Plaintiff’s deed dated July 14, 1883, described the property as follows:

“All that certain piece or parcel of land lying and being inside of W. V. Clarks enclosure, and located North of the Wagon road leading from Mokelumne Hill to David McCarty’s Sawmill, and bounded as follows: N by land of W. V. Clark, S. by Mokelumne Hill Wagon road, E. by line of Clarks Canal, W. by Henhouse yard fence and land of W. V. Clark.”

Defendants’ title is predicated upon a deed to defendant Amalia Stotts dated May 31, 1921, wherein the property is described as follows:

“The fractional North half of the Southeast quarter and the Southwest quarter of the Southeast quarter and the East half of the East half of the Southwest quarter of Section thirty-five (35) Township six (6) North, Range thirteen (13) East, Mount Diablo Base and Meridian.

[591]

' ‘ Save and Excepting that certain, parcel of land conveyed by Daniel H. Pillsbury to W. V. Clark by Deed dated July 14, 1883, and of record in the office of the County Recorder of Calaveras County, California, in Book 17 of Deeds, at page 239, Calaveras Comity Records, reference to which is hereby made for a particular description of said parcel.

“Water right and ditch taking water from the Calaveras River at Culvert in Southwest quarter of Section thirty-six (36) . . . together with water from spring in line of said ditch and conveying water from both supply sources to South half of Section thirty-five (35). . . .”

At the trial no question was raised as to the validity of the chain of title as deraigned from the United States patent through Pillsbury. The main issue related to the identification of the property conveyed by the deed from Pillsbury to Clark as being the same property as that described by metes and bounds in plaintiff’s complaint which description was prepared for plaintiff by one Rutherford, a licensed surveyor. When called as a witness for plaintiff, he testified that he observed a ditch running generally through the southerly portion of the property and meandering northward along the line claimed by plaintiff to be the eastern boundary thereof, and that he also observed the remains of an old barbed wire fence along the southern boundary just north of the road claimed to be the southern boundary line and referred to in the deed as Mokelumne Hill Wagon Road. There was additional evidence given by plaintiff who testified concerning the overall physical aspects of the property at the time the Pillsbury deed was executed; the enclosure by decedent of the entire property with a fence; the existence of a road adjacent to the property known as the McCarty Mill Road; the present remains of a barbed wire fence along the southern boundary; the use of the land to the north by his father, which land was later patented to a sister; and the ditch presently running through the property which was known as Clark’s Canal.