Rice v. McKune

Shaepstein, J. The respondent, McKune, purchased of the State five hundred and sixty acres of swamp and overflowed land which had not then been surveyed by the United States, but of which he procured a survey to be made by the county surveyor of the county in which said land was situated according to the provisions of the statute then in force.

The controversy is as to the location of the northern boundary line of the tract sold by the State to the respondent. He claims that the land purchased by him is bounded on the north by the northern line of township five north of range five east. And he bases that claim upon the field notes of the survey by the county surveyor, of which the following is a copy:—

“Beginning at the southwest corner of section one; thence north eighty chains to the township line; thence east nine chains to Cosumnes River; in all, eighty chains; thence south on range line forty chains; thence south forty chains; thence west thirty-eight and fifty-one hundredths chains to Cosumnes River, in all sixty chains, to place of beginning.”

When that survey was made the location of the southwest corner of section one had not been determined by a United States survey. But the township line referred to had been run. That line and the Cosumnes River constituted the only fixed objects referred to in said field notes. After the respondent had purchased the land it was surveyed by the United States, and according to that survey the southwest corner of said section one is considerably more than eighty chains south of said township line, and the strip of land lying between a line eighty chains north of the south line of said section, and said township line was subdivided into lots numbered one, two, three, four, which the State afterwards undertook to sell and convey to the appellant. So that the only question which we have to decide is whether these lots were included in the conveyance of the State to the respondent.

The certificate of purchase issued March 16, 1864, to the respondent, describes the land sold to him as follows: —

“ Survey number six hundred and fifteen, Sacramento County, the north half, the southwest quarter, and the west half of the [126]southeast quarter of section one, township five north, range five east, Mount Diablo base meridian.”

And in the patent issued to respondent January 24, 1872, the following description is given:—