Franklin v. Dorland

[177]By the Court,

Shafter, J. This action was brought to recover the pieces or parcels of lands in San Francisco described in the complaint and referred to throughout the case as parcels 1, 2 and 3. The plaintiff had judgment for the first and third parcels and the defendant for the second. The defendant appeals from the judgment in favor of the plaintiff for the first and third parcels and from the order denying his motion for a new trial.' No appeal has been taken by the plaintiff from the judgment against him for the second parcel.

The answer denies the right of the plaintiff to the several lots—sets up title in the defendant and adverse possession of the first parcel for more than thirteen years, and title in Samuel Grim and adverse possession of the third parcel for thirteen years, and that defendant is not and has not been in the possession thereof except as the tenant of said Samuel Grim.

The defendant quitclaimed the first parcel sued for, to Groat, June 12th, 1854; who quitclaimed to Robles in 1856, who, on the 20th of March, 1863, conveyed to the plaintiff. The north line of the parcel was described in the plaintiff’s deed to Groat as follows: “ Commencing at a point on the west line of Dolores street, in said city, where it is intersected by a post and rail fence designed for pickets, along which is planted a row of cottonwood trees.” The location of this row of trees was one of the governing questions of fact controverted by the parties at the trial. The defendant introduced five witnesses all of whom placed the trees on the line claimed by him; and the one witness who located them in the first instance according to the views of the plaintiff by whom he was called, after hearing the witnesses for the defense, went voluntarily upon the stand and so corrected his first statement as to bring it into substantial agreement with the testimony given by them. All of these witnesses were acquainted with the lopality; none of them were impeached, nor is there anything in the record reflecting in the slightest degree upon their trust[178]worthiness. The only-evidence relied upon in rebuttal, was found in a mortgage executed by the defendant Borland to one •Debus, in August, '1856. The premises covered by the mortgage are described therein as follows : “ Commencing at a point on the western line of Dolores street, formed by the intersection of the southern line of lands owned by J. P. Coater with said Dolores street; thence running southerly on said line of Dolores street two hundred and fifty feet, to lands recently deeded by the party of the first part to E. V. Groat; thence at i;ight angles,” etc. It is conceded, if the northern line of the lot conveyed by the defendant to Groat in 1854— that is, the row of cottonwood trees—was in fact two hundred and fifty feet south of the starting point named in the mortgage, that the lot so conveyed to Groat in 1854 is the one described in the complaint.