Cecil v. Gray

SLOSS, J.

The plaintiff, claiming to he the owner of a tract of land in Glenn County, brought this action to enjoin the defendants from entering the land and constructing an irrigating canal thereon. The defendant Gray was about to proceed under authority derived from Louisa E. Boggs, Frank S. Boggs, Fred H. Boggs, and Alice J. Dutton, who, asserting title to the parcel which was to be occupied by the proposed canal, intervened, and asked that their title to the land claimed by them be quieted. Pending the action, the right to construct the canal was acquired by condemnation, and the present litigation has resolved itself into a contest between the plaintiff and the interveners over the title to. the land claimed by the latter. Judgment went in favor of the plaintiff, quieting his title, subject to a right of way for the canal. The interveners appeal from the judgment and from an order denying their motion for a new trial.

The appellants describe the land which they claim to own as lots 7, 8, 9, and 10 of section 30, in township 19 north, range 2 west, M. D. B. & M., the said four lots containing 73.28 acres. The plaintiff asserts ownership to the whole of section 30.

A government survey of township 19 was made, and the plat thereof approved on November 12, 1867. This plat was offered in evidence. It showed the easterly half of section 30, divided into two full quarter sections of 160 acres each, and the east half of the westerly quarter sections, each containing 80 acres. The west end of the section, bounded by the range line and by the two eighty-acre subdivisions just mentioned, was divided into four lots, numbered 1, 2, 3, and 4, and containing, respectively 46.40, 46.20, 46, and 45.80 acres. The area of the entire section was 664.40 acres. A plat of a second survey, made by one Shackleford, was ap

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proved April 2, 1879. This plat shows lots 7, 8, 9, and 10, running along the westerly line of lots' 1, 2, 3, and 4, and containing in the aggregate 73.28 acres. The land lying east of these lots is shown just as it was in the delineation of section 30 on the earlier plat. By the inclusion of lots 7, 8, 9, and "10 in section 30, on the face of the Shackelford plat, that section is made to contain 737.68 acres.

Prior to the making of the second survey, the different subdivisions of section 30 (as delineated on the original survey), were patented to various persons. All of these parcels finally became vested in John Boggs, the last conveyance to him being dated August 10, 1875, on which date he was the owner of the record title to the whole of section 30. On August 16, 1879, John Boggs executed to John E. Crooks, Bobert Balfour, and Bobert Brodie Forman a grant, bargain, and sale deed conveying to them “all of section 30, township 19 N., R. 2 W., M. D. B. & M.” This, it will be observed, was subsequent to the approval of the Shackelford survey and plat. The plaintiff has succeeded to the interest of the grantees under this deed.