Pitcairn v. Harkness

ALLEN, P. J.

Appeal by defendant from a judgment and order denying a new trial. The action was one to determine conflicting claims to a certain twenty-five foot strip of-ground lying between tracts of land owned by the respective parties. Plaintiff in her complaint alleged exclusive ownership and right of possession thereto, which was denied by the answer, and defendant, in addition, filed a cross-complaint in which he claimed the exclusive ownership and right of possession as against plaintiff.

[297]

The court found that plaintiff was the owner and entitled to such possession, and that defendant had no right or interest therein. This appeal rests upon the specification of error in relation to the inaccuracy of this finding. It appears from the evidence set out in the statement on motion for a new trial that in 1883 one Wharton acquired a tract of land in the city of Pasadena containing forty-one acres, the northerly line of which tract extended from the intersection of the center line of Hill avenue with the center line of Colorado street easterly along the line of Colorado street a distance of eighteen and sixty-five hundredths chains. No conveyance of said tract by Wharton appears to have been made until May 7, 1887, at which date he conveyed to his wife a portion of said tract, the northerly line of which commenced at the intersection of the streets above named, and thence extended easterly ten and forty-nine hundredths chains to a point; thence south, west and to the place of beginning, the area of which included twelve acres of land, “reserving therefrom a strip of land twenty-five feet wide off the east side for street purposes. ’ ’ Two days thereafter Wharton entered into a contract with one Dennison, through which he agreed to sell and Dennison agreed to buy eighteen and eighteen hundredths acres lying east of the land conveyed to the wife, and in the description of the land so agreed to be sold the northwest corner thereof was identical with the northeast corner of the twenty-five foot strip. Wharton having deceased, thereafter by virtue of an appropriate decree of the probate court in the matter of the estate of Wharton, his administrator conveyed to Dennison’s assignee the land so agreed to be sold, and in the deed the premises were described as commencing at a point which is the northeast corner of the twenty-five foot strip in controversy ; thence east to the northeast corner of the forty-one acre tract; thence south, west and north so as to include all of the lands owned by Wharton east of the said twenty-five foot strip mentioned in the deed to the wife. In the deed and contract of Dennison, however, is found this statement: “Said purchase includes 25 feet joining the west side of the above 18.18 acres, to be used for streets. ’ ’ No controversy as to conflicting line or surveys is presented; nor is there anything in the record warranting a claim by either of a title by prescription. In fact, appellant concedes this point.