Beaudry v. Doyle

Searls, C. — This is an action of ejectment to recover a tract of land of about five acres, situated in the county of Alameda. Plaintiffs had judgment, and defendant prosecutes two appeals, one from an order denying a new trial, and the other from the final judgment.

The land in controversy is parcel of the Peralta rancho, to which a patent issued to Domingo and Vicento Peralta February 10, 1877.

A portion of the rancho had been surveyed and divided into blocks or plats by one Julius Kellesberger, as early as 1856, and a map thereof filed in the office of the county recorder of Alameda County during that year.

Plaintiffs claim plat 41, and defendant owns plat 42, which lies north of and adjoins 41.

The land in dispute consists of a narrow strip along the north side of plat 41, and is claimed by plaintiffs under title to that plat, deraigned from the patentees through various mesne conveyances.

The immediate grantees of the Peralta title owned blocks 41 and 42, and on the same day conveyed block 41 to parties under whom plaintiffs claim, and block 42 to certain other parties, under whom defendant holds.

[106]The deed to defendant’s grantor was first recorded.

The land lies on the westerly side of San Pablo Avenue, formerly known as the county road, and extends from that avenue to the bay of San Francisco.

The deeds under which plaintiffs claim describe their land as commencing at a post marked B, on the westerly side of the road (at southeast corner), running thence by course and distance to the bay, thence by course and distance northerly along the beach to the northwest corner, being the southwest corner of plat 42, thence easterly by course and distance to the northeast corner at the county road, thence southerly along the county road to the place of beginning; and describes it as “known and designated as plat No. 41, upon a map of the ranches of Vicento and Domingo Peralta, surveyed by Julius Kellesberger, and filed in the office of the recorder of Alameda County, on the-day of-, 1856, and containing 100.63 acres.”

The deeds under which the defendant deraigns title in like manner describe plat 42, commencing at a post on the westerly side of the county road, at the northeast corner of land claimed by one Bertrand (plat No. 41); the description then gives the courses and distances around the tract, containing 102.25 acres, and describes it as known and designated as plat 42 on map, etc., according to the survey above mentioned.