Hall v. Shotwell

McKee, J. This was an action to determine adverse claims to a strip of land in that portion of the city of Oakland on which were laid out the towns of Clinton and San Antonio. When those towns were laid out, the land in dispute was situate on both sides of a small slough or creek, called Embarcadero Creek, which ran into the estuary of San Antonio, at what was known as the Embarcadero of San Antonio. At the commencement, of the action there was on the bed of the creek, from Washington street to the Embarcadero, a street about sixty feet wide, called Commerce street, opened, graded and macadamized. The land includes the street and lands on each side of it, in the possession of the defendants, who claim title to their several possessions by mesne conveyances from James B. Larue.

On the other hand, the plaintiff claims title to the parcels of land in possession of the defendants, under a deed dated the 28th of February, 1878, from Eugene Sullivan to Horace W. Carpentier. The deed purports to convey “ all the pieces, parcels and fractions of land, if any, not heretofore sold and conveyed by me, within the boundaries of that certain tract of land described in a certain deed from Antonio M. Peralta to Charles B. Strode, dated February 2, 1858, and recorded in book 2 of land titles, pages 435 and 436, in the recorder’s office of Contra Costa county; that is to say: extending from the Sausal creek to Indian creek or gulch, and from the summit of the mountains to the bay of San Francisco.”

But Strode, on the day he acquired his title to that tract of land, mortgaged it back to Peralta, to secure him in the payment of an unpaid balance of the purchase money. At the same time he excepted from the mortgage a portion of the general tract, containing two hundred acres, which were described as follows : ‘1 Two hundred acres of land at Embarcadero of San Antonio, which are situated as follows: lying on the south side of the creek that empties into the bay at the said Embarcadero, which creek shall be the northern line of said 200 acres: and the bay of San Francisco (the estuary of San Antonio) being the westerly line, and the said 200 acres to be in a square form.” Strode, therefore, was the absolute owner of this tract; and he [381]subsequently conveyed it by deeds to Brady and Larue, the remote grantors of those of the defendants who, under them, are now in possession of portions of it.

Of the general tract, Sullivan, the grantor of the plaintiff, acquired title by purchase under the Strode mortgage ; but he never acquired title, nor claimed to have acquired title, to the particular tract excepted from the mortgage, and conveyed by Strode to Brady and Larue ; on the contrary, this tract was excepted by Sullivan from the operations of the subsequent conveyances of the general tract between himself and the prior grantees of Strode, who took their deeds subject to the Strode mortgage.