Truett v. Adams

McKee, J. This was an action to recover an undivided interest in a block of land situate within the city of Oakland, and embraced within what has been heretofore known as the “ Encinal, or Ensinar, of Temescal.”

To the original owners of the land, the Encinal of Temescal was well-known as a tract of land hounded on the east by the estuary of San Antonio, on the south by said estuary and the Bay of San Francisco, on the west by the Bay of San Francisco, and having for its northern boundary a straight line running from the estuary of San Antonio to the Bay of San Francisco; and, as known by these boundaries and that name, it formed part [219]of the Temescal ranch, of which it is admitted Vicente Peralta, was in the years 1851 and 1852 the owner and in possession.

From Peralta the plaintiff claims to have acquired title to the premises in dispute, by, through, and under a deed from K.. P. Hammond, to whom and others Peralta, on the 3d day of August, 1853, granted a portion of the Temescal ranch by boundaries which would have included thé Encinal of Temescal; but in the descriptive clause of the grant there is the following exception, viz: “ Excepting therefrom all the land comprehended in the Encinal of Temescal sold on the 13th of March, 1852, to John Caperton and others.”

It is well settled that the grant of a tract of land with well known boundaries, designated and known by a general name, passes all the land within the tract so named and designated; and upon the same principle, where, in the grant of a tract of land by metes and bounds, there is excepted therefrom a portion of the tract with well known boundaries, designated by a general name by which it is known, the tract so designated does not pass by the grant.

It would therefore seem that Peralta, by his grant to Hammond, intended to, and did in fact, except from the operation of the grant the entire Encinal, either for those to whom he declared he had previously sold it, or for himself; and, whether for them or himself, no part of the land “ comprehended in the Encinal” passed to Hammond. So that the plaintiff, who claims only as the grantee of Hammond, acquired whatever right Hammond had to land outside the Encinal tract; and as it is only by virtue of that right that she claimed title to the land in controversy, it was incumbent on her, in order to recover, to show that the land was not a part of the Encinal tract. (City of San Jose v. Uridias, 37 Cal. 339.) She, however, admitted it was within the Encinal, and therefore within the exception of her grantor’s deed, if the description in the deed embraced the Encinal.