Irwin v. Towne
Before: Crockett
Synopsis
Title in Ejectment.—In ejectment, where both parties claim under a common source of title, it is unnecessary for the Court to investigate the question of title unless the plaintiff’s deed includes the demanded premises.
Bettes Title in Ejectment.—Where hoth parties in ejectment rely on paper title the possession of the defendant cannot he disturbed unless the plaintiff shows a better title.
Deed—Description by Eight Angle.—A deed which contains a call describing a boundary as a line commencing one hundred yards below the mouth of a certain creek (naming it) and to run at right angles with the creek, there being nothing on the face of the deed to indicate that the creek does not run in a perfectly straight course, or that a straight line drawn along the thread of the stream would not intersect the beginning point of the contested line, is not void for uncertainty on its face in respect to such line. A perpendicular line drawn from this base would answer the call in the deed.
Idem—Base eoe Eight Angle, how Established.—In order to run a line at right angles to a tortuous stream a straight line must first he established as a base. This can be done only by ascertaining and reducing to a straight line either the general course of the stream, from its source to its mouth, or that portion of the stream which shall appear to have been within the contemplation of the parties at the time of the execution of the deed.
Construction of Deed—Location of Line.—A deed from J. to I. contained a call which referred to a' creek “running from San Eafael to the Bay of San Francisco.” It appeared that the stream above the Village of San Eafael was a running stream hut a part of the year, and was not known by the same name as the part below; also, that below the village the stream is navigable a portion of the distance from its mouth. The stream is referred to in. another portion of the deed as “ the creek running from San Eafael to the Bay of San Francisco;” held, that the parties making the deed intended to refer to the portion of the stream below San Eafael only, and that a straight line drawn from the head of the stream to its mouth would establish a base line for a right angle called for in the deed.
Idem—Description by Angle and by Direction. — I. claimed title under a deed which described a boundary line as “ commencing on a line at a point one hundred yards below the mouth of the creek running from San Rafael to the Bay of San Francisco, on the easterly side of said creek; thence running at right angles to said creek to the highest ground on the ridge;” and T. claimed under another deed a line as commencing “at a point about one hundred yards below the mouth of San Rafael Greek, and running thence northwesterly, or at right angles with the said creek, to a point on the top of the main ridge.” There being no visible monument called for at the end of the line in T.’s deed to fix its location; held, that the term “northwesterly,” used in his deed, is less definite than the call in
By the Court, Crockett, J.: The action was tried by the Court, and' no written findings were filed. Judgment was entered for the defendants, and the plaintiff appeals from an order denying his motion for a new trial. Both parties claim under a common source of title, the conveyance under which defendants deraign title being prior in time. Bach claims that his own'deed embraces the premises in controversy, and that the deed of his adversary does not. The defendants being in possession, it will be unnecessary to consider their title, unless it appears that the deed to the plaintiff includes the land in contest. He cannot disturb their possession, unless he shows" the better title. The first descriptive call in the deed from Jacks and wife to the plaintiff is as follows: “ Commencing on a line at a point one hundred yards below the mouth of the creek, running from San Rafael to the Bay of San Francisco, on the easterly side of said creek; thence running at right angles to said creek to the highest ground on the ridge.”
The defendants insist that a line commencing one hundred yards below the mouth of the creek, and to run at right angles with the creek, is incapable of being located with reasonable precision. But there is nothing on the face of the deed to indicate that the creek does not run in a per[332]fectly straight course, or that a straight line drawn along the thread of the stream would not intersect the beginning point of the contested line. In that event a perpendicular line drawn from this base would answer the call in the deed, which is, therefore, not void for uncertainty on its face, in respect to this line. But the proof shows that the creek is exceedingly tortuous throughout its whole course from San Rafael to its mouth, and that, after an abrupt curve towards the north, it enters the bay nearly at a right angle. The tide ebbs and flows in it, and the land on either side is flat and marshy.' It further appears that the creek from San Rafael to its mouth is navigable by small craft for a portion of the distance, whilst above San Rafael the stream does not run in the dry season, but during the Winter is supplied by springs rising in the mountains several miles distant. Below San Rafael the general course of the creek is nearly due east and west, whilst above the village the bed of the stream runs in a northwesterly course. The evidence tends to show that at the date of the deeds, under which the parties respectively claim, only that part of the stream which lies below the village was generally called and known as San Rafael Creek, whilst the same term was occasionally, though not generally, applied to that portion of the stream lying above the village.
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