Southern Pac. R. Co. v. Industrial D. L. Co.

WILBUR, J.

Plaintiff sued to enjoin the defendants from erecting a brick building upon land alleged to belong to the plaintiff and to be necessary for the operation of Its railway, the title Whereof was claimed by defendant Land Company. The court gave judgment for defendants and plaintiff appeals.

Plaintiff and defendant Industrial Development Land Company are the owners of adjoining land in Los Angeles, in the block bounded by Macy, Alameda, Aliso, Lyon, Avila, and Ramirez Streets. The real controversy between the parties is as to the location of a part of the boundary line between their properties, and this in turn depends upon the location of one of the stations in that boundary line of the lands formerly owned by Mrs. C. A. de Sepulveda. The land thus brought in question is triangular in form, with a base at the disputed point of about two and a half feet and an altitude of about eight hundred feet. After plaintiff and defendant had introduced in evidence the deeds constituting theii respective chains of title, the defendants offered in evidence a decree of partition of lands belonging to the heirs of G. Tononi, to the south and east of the property belonging to the parties. Appellant claims that the introduction of this decree was erroneous, for the reason that neither of the parties to this action, nor their predecessors, were parties -to the partition suit. The decree, how-

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e.ver, was received in evidence, not for the purpose of binding the parties by its terms, but for the reason that one of the cornel's referred to in this decree is the disputed point and is referred to in the mesne conveyances under which plaintiff claims title, which reference is as follows: “Said point being the northeasterly corner of the lands of Mrs. C. A. de Sepulveda and a common corner with the lands of the heirs of G. Tononi as the same existed prior to the execution of the deed by said Mrs. C. A. de Sepulveda and her husband to the party of the first part herein ... to which said deed reference is hereby made; said point of commencement being further described as being on the southerly line of what is known as the Los Angeles Orphan Asylum Tract, ’ ’ etc. In view of this reference to a common corner of the lands of plaintiff’s predecessors and to the heirs of G. Tononi in the decree in partition, it was competent evidence to aid in fixing the disputed point. This corner was thus described in the decree of partition: “ ... a post 4"x4" marked C. A. and G. T. in the northeasterly corner of the land of C. Apablasa . . . who was a predecessor of defendant.