Altschul v. San Francisco Central Park Homestead Ass'n

By the Court,

Crockett, J.: This is an action under section two'hundred and fifty-four of the code to quiet the plaintiff’s title to a lot of land in the City of San Francisco. The answer denies the title of the plaintiff and sets up title in the defendant. At the trial it was admitted that in the year 1864 the title to the premises in controversy was in one Chart, under whom the plaintiff and defendant both claim. It further appeared that in 1864, whilst the owner of the premises, Chart made a deed to one Travis for a parcel of land which was described as follows: “ Commencing at the northeasterly corner of Pacific street and Lone Mountain Cemetery Avenue, as such corner may be established by the city hereafter, whether known as such street or not; thence running parallel with Lone Mountain Cemetery Avenue one hundred and thirty-seven and a half feet in a northerly direction; thence parallel with Pacific street in an easterly direction sixty-eight feet nine inches; thence parallel with Lone Mountain Cemetery Avenue in a southerly direction one hundred and thirty-seven feet and six inches; thence along the northerly side of Pacific street sixty-eight feet nine inches, to the point of beginning;” and that Travis subsequently conveyed the land by the same description to the plaintiff. In 1868 Chart conveyed the premises in controversy here to the defendant. At the trial the plaintiff proved by parol, against the objection and exception of the defendant, that at the date of the deed from Chart to .Travis and from Travis to the plaintiff, there was an open space about sixty feet wide, running from the front of Lone Mountain Cemetery to Pacific street, and which was fenced as far north as Jackson street; that this open space was then known as “ Cemetery Avenue,” and that if it had been [174]extended across Pacific street the lot in controversy in this action would have been situated at the northeast corner of said open space thus extended and Pacific street. That at the dates of said deeds from Chart to Travis and from Travis to the plaintiff', Chart pointed out to them the lot in controversy as the one which he proposed to sell, and did sell and convey to Travis; and it was further proved that the defendant had notice of these facts when it took the deed from Chart. The defendant then proved that when Chart conveyed to Travis there was an open street, known as Baker street, running north and south across Pacific street immediately east of the block in which this lot is situated, which street was then officially established; but there was no other street officially established west of Baker street until the year 1869, when a street known as New Cemetery Avenue was established, and which runs across Pacific street about five hundred feet west of the lot in controversy. It further appeared that the land at the northeast corner of Pacific street and New Cemetery Avenue is within the tract reserved by the United States for military purposes. Judgment having been entered for the plaintiff, the defendant appeals, and assigns as error the rpling of the Court in admitting parol evidence to prove the facts above stated. But, in my opinion, the evidence was clearly competent. In construing doubtful clauses in a deed it is important to ascertain all the attending circumstances in order to arrive at the intention of the parties; and whilst it is not competent to alter, enlarge, or vary the instrument by parol, it is well settled that oral testimony is admissible to explain the calls ■ of a deed by applying its descriptive portions to the natural objects called for. When the deed from Chart to Travis was executed no street was officially established west of Baker street; but the parties had a right to presume that the open space then known as Cemetery Avenue would be officially established as a street of the city, and would be extended across Pacific