Dent v. Bird

Ross, J. The subject of this controversy is a part of that portion of the Rancho San Antonio, situated in what is now the county of Alameda, which was confirmed and patented by the United States government to Antonio Maria Peralta, under whom both plaintiff and defendants claim title, defendants through a deed executed by Peralta on the 23d of October, 1851, to William A. Chipman and Gideon Aughinbaugh, and plaintiff, by virtue of a deed executed by Peralta on April 8, 1868, to George W. Dent and Thomas Wallace. At the time of the deed to Chipman and Aughinbaugh, Peralta’s title rested upon the grant from the Mexican government, but its subsequent confirmation and patent by the government of the United States inured to the benefit of his grantees, and determined as well the validity of the grant as its boundaries. Admittedly, the land in dispute, which is marsh land, is within the patented lines, so that the real question in the case is whether it falls within the descriptive calls of the deed to Chipman and Aughinbaugh. The description [653]is : “All that tract or parcel of land situated in the township of San Antonio, and in the county of Contra Costa, and known by the name of Bolsa or Peninsula del Encinal, being part of the Rancho de San Antonio, and property of A. M. Peralta, granted, etc. .... Said Encinal is almost all surrounded by the sea water, having a single entrance or mouth on the northeast side. Said mouth or entrance is to be fenced and gated by said parties of the second part immediately (upon) taking possession, from the point or end of the San Leandro Slough, or Estero de San Leandro, to the point or end of San Antonio Slough, or Estero de San Antonio, a distance from point to point of about 1,000 yards, more or less, and said line for the fence run about 300 yards from the brick-yard house with the purpose of preventing the entrance of the cattle of said A. M. Peralta, and of his heirs, executors, or assigns, and for not doing so, said William W. Chipman and Gr. Aughinbaugh, their heirs or assigns, are bound to pay all damages unto said A. M. Peralta, his heirs, executors, or assigns.”

Plaintiff’s counsel objected to the introduction of this deed when offered by defendants, “ upon the ground that it did not include the lands described in the complaint, as by its terms it only purported to convey the part of the bolsa or peninsula covered with oak timber, and in this connection offered to prove the following facts:—

“ First—That at the time of the execution of the said deed, and prior thereto, it was supposed by the grantor and grantees of said deed that there was about 2,200 acres of high land upon the peninsula.