City of Santa Cruz v. Younger

DRAPER, P. J.

Although this is a proceeding in eminent domain, the sole dispute concerns title to land.

In 1927, appellant Younger received a gift deed describing the granted land as bounded on the northwest by Branciforte Creek. The creek’s course, as shown by a map made in 1910 and aerial surveys made in 1957, had shifted to the southeast by as much as 50 to 80 feet. The area between the two creek courses is the subject of this appeal. Apparently no owners on either side of the creek noticed the change of its course. There is evidence that the change was “imperceptible” (probably meaning gradual), but there is no showing as to the location of the creek at any given time in the 47-year period.

Before 1920, appellant’s grantor owned the land on both sides of the creek. In 1920, she conveyed the westerly portion of her property in five parcels, the westerly ends of which fronted on Market Street, to Silva, Koehler and Galbraith. All these deeds described the property conveyed by metes and bounds, and none referred to Branciforte Creek as the

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southeasterly boundary. There is evidence, however, that the metes and bounds descriptions of these parcels placed their southeasterly boundary at the center of Branciforte Creek, as shown on the 1910 map, and each deed was specifically made subject to water rights theretofore transferred. There is testimony that the deed descriptions were not the result of actual surveys, but were taken from earlier surveys and data, or were "office drawn descriptions. ’ ’

When the complaint in this condemnation action was filed in 1958, it described the properties on both sides of the creek as running to its center, and sought to take the bed of the stream and a strip on either side for flood control purposes. Plaintiff city negotiated settlements with four of the owners of lands northwest of the creek and took deeds from them based upon this description. In August 1959, nine months after summons and complaint were served on appellant, the case was tried as to the Armstrong parcel, which adjoined appellant’s land on the northwest. Appellant did not appear in that trial, nor did he assert that the description was erroneous, and judgment was for the property described in the complaint, i.e., to the 1957 line of Branciforte Creek. It follows that the jury based its award on the quantity of land so described, thus including a portion of the land now claimed by appellant. Appellant answered April 8, 1960, claiming only the land ascribed to him by the complaint. His claim to the land northwest of the present creek was not suggested until he filed his pretrial statement May 4, 1961. Amended answer asserting the claim was filed June 9, 1961. At trial, appellant for the first time produced a deed from his cousin, his original grantor, which purported to quitclaim to appellant all the land granted in 1927, plus the area now in dispute. This was done by describing the northwesterly boundary of the quitclaim tract in the same terms as used by the grantor for the southeasterly boundaries of the several parcels she had conveyed to Silva, Koehler and Galbraith in the 1920 deeds. This quitclaim deed is dated June 8, 1961, six days before trial. Appellant asserts that it transfers to him the area lying between Branciforte Creek as it was mapped in 1910, and the creek as it actually flowed in 1957.