Alviso v. Vallestero

By the Court : The title to the premises in controversy depends upon the location of the western boundary line of the Rancho Las Pocitas, and that line depends upon the position of the initial point of the survey of the rancho. It is described in the field-notes as the “ corner to secs, five, six, thirty-one and thirty-two, on township line between townships two and three south, range two east, Mount Diablo meridian, mark post station number one, L. P.” There is, in fact, no post at that point, nor any monument showing its exact position; and the' real question is, as to the proper manner of ascertaining the initial point. The testimony of several surveyors was taken, and there is no reason to question the [501]correctness of any of their statements of facts; but they disagree in their opinions as to the proper mode for the finding of the initial point. The plaintiff’s witnesses are of the opinion that the proper mode is to begin at the southeast corner of township two south, range two east, and run thence west on the township line five miles, and establish at that point the corner of the four sections above mentioned, as and for the initial point of the survey; and the surveyor, upon whose testimony the defendant principally relies, is of the opinion that other monuments and courses and distances mentioned in the field-notes may be resorted to as a means of finding the initial point of the survey, and that the proper mode is to follow, as far as possible, the steps taken by the surveyor who made the official survey of the rancho. The Court below seems to have adopted the opinion of the plaintiff’s witnesses.

ISTo monument was found at the southeast corner of the township ; but by commencing at known corners on the range line, to the south of the corner, the corner was established with sufficient certainty. The southwest corner of the township was found—that is to say, the bearing trees were found, and from them the corner was ascertained. It was not proven that there are any section corners to be found on the southern line of the township. Measuring five miles from the southeast corner of the township, the initial point of the survey will be at the point claimed by the plaintiffs; but measuring from the southwest corner of the township, the distance mentioned in the field-notes—77.85 chains—the initial point will fall near the place claimed by the defendant—or, more accurately stated, 75 links to the east of that place. The contract for the survey of the rancho, and of the public land in that township, was given out to the Deputy Surveyor as one contract; and both surveys having been made at the same time, no reason occurs to us why, in ascertaining the initial point established by that survey, a surveyor should now be required to run from an established point five miles, rather than from a point as well, if not better established—the distance of 77.85 chains. In fact, there would be less probability of finding an error in the latter than in a line of the'length of 400 chains. There are also other monuments,