McKean v. Alliance Land Co.

PRESTON, J.

Plaintiffs own the northern one-half of lot 9, Alice Park Property, Oakland, California. Defendants own lot 10, adjoining. Plaintiffs claim the common boundary between said lots is located 1182.84 feet from the point of intersection of Twelfth and Harrison Streets; defendants contend it is located 1182 feet from the same point, and relying upon this contention caused to be erected upon their property a brick and tile garage building, which building

[397]

upon completion, according to the testimony of their own witness Mr. Prather, encroached beyond the boundary claimed by them a distance of from one-half to five-eighths of an inch.

Plaintiffs sued to enjoin defendants from depriving them of their property, being the said 84/100 of a foot, more or less, in dispute, and for abating said building as a nuisance ; also for damages in amount of $5,000.

There is a conflict in the evidence. Clifford H. Board-man, an experienced surveyor, gave testimony in support of plaintiffs’ contention. Plaintiffs also introduced certain old city ordinances in an effort to prove that subsequent to the filing for record of the map of Alice Park there had been a change made of about one foot in the monument line of Twelfth Street and certain old maps purporting to show a variation of one foot in the location of Twelfth Street. None of these exhibits show a difference of .84 of a foot and at most they appear to be but proof of inaccuracy in the surveys.

On the other hand, E. C. Prather, also an experienced surveyor, gave testimony fully supporting defendants’ claim, and they further introduced evidence showing that every conveyance of lot 9 and lot 10 from 1868 to date of the trial gave the distance from Twelfth Street, or Fourteenth Street, in accordance with the filed map distance and as found by the court. Mr. Prather stated he had first surveyed the tract in question six years prior to the commencement of this action; that at the request of defendants he surveyed lot 10 in December, 1921, and again went over the survey after construction of the garage; that as his initial point he took the northerly line of Twelfth Street, as fixed by the city monuments, at its intersection with the easterly line of Harrison Street; that he found the distance along Harrison Street from said point to the point of intersection with the southerly line of lot 10 to be 1182 feet. This distance is corroborated by the map of Alice Park and is .84 of a foot less than the distance testified to by Mr. Boardman. It is conceded that Mr. Prather’s survey is right, and Mr. Board-man’s wrong, if the northerly line of Twelfth Street is located now where it was in 1868. In other words, it is a disputed question of fact as to whether the monument line of Twelfth Street was changed subsequent to 1868. Mr.