Irving v. Cunningham

ROSS, J.: Appeal from an order made by the Superior Court of Alameda County, granting a new trial in a case tried before the late District Court of that county. The principal question in the case relates to the proper location of one of the calls of the deed executed by Domingo Peralta to Hall McAllister and others, on the 16th of August, 1853. The language of the deed describing the northern boundary line of the land conveyed by it is: “A line drawn from a point two hundred varas south of a house occupied by a squatter named Espejo, and passing to a point at a small creek (un arroyito), about two hundred varas south of the house now occupied by the said Don Domingo (the grantor in the deed) with his family; and thence north-easterly,” etc. There is no dispute between the parties as to the location of the point two hundred varas south of the house occupied by Espejo, nor is there any conflict in the evidence about the fact that there were at the time of the execution of the deed in question, and still are, to the south of the house occupied by the grantor, Peralta, two creeks, each of which had a name, and both of which appear to have been well known—the one called School House Creek being more than five hundred varas, and the other, called Alta Creek, being more than one thousand eight hundred varas to the south of that house.

While it is very evident from the testimony that the witnesses do not agree in- their ideas as to what constitutes “ a creek,” there is no doubt that the evidence strongly preponderates in favor of the proposition that there was, at the time of the execution of the McAllister deed, a small arroyo about two hundred varas south of the house of Peralta, traces of which still remain. Many of the witnesses speak of this arroyo as a creek, some as a wet-weather run, others as a sag, and others still as a gulch or gully in which water ran in wet weather, and in which it stood in places in dry weather. A, [308]number of witnesses on behalf of the defendants testified that there was no “ creek” to the south of Peralta’s house nearer than that spoken of as School House Creek; but this does not necessarily controvert the existence of the place designated by the grantor in his deed as “ un arroyito”—a small arroyo. At all events, the preponderance of the evidence is to the effect, that when the deed was executed there was a place in the surface of the ground, about two hundred varas south of Peralta’s house, where water ran, whether it be called a run, gulch, gully, sag, or creek.