Breen v. Donnelly

McFarland, J. — This is an action to reform a deed. Judgment went for plaintiff in the court below; and from the judgment and order denying a new trial defendants appeal.

The following are the material facts: On and before December 18, 1867, Patrick Breen and James Dunne [303]were the owners in fee and in possession, as tenants in common, of a large tract of land containing over forty-eight thousand acres, and known as the Sobrante de San Lorenzo rancho, each owning an equal undivided interest. Prior to said last-named day, they had agreed upon a partition of the rancho, to be accomplished by ascertaining a line drawn from the easterly to the westerly side of the land, which should divide it exactly into two halves, or equal parts, and interchanging deeds of conveyance, so that each would own a half in severalty. To this end they had employed one Smith, reputed and believed by them to be an honest, competent, and skillful surveyor, to run said line, who had reported that he had surveyed and established a certain line which divided the rancho into two equal areas, as contemplated. This line was marked by stakes, and was afterward designated for some distance by a plow furrow. Both Breen and Dunne were informed by Smith and believed that he had correctly computed the areas on each side of said line, and that they were equal. Thereupon, in accordance with their agreements on the said eighteenth day of December, 1867, said Breen executed and delivered to said Dunne a deed of conveyance of the northeast half of said rancho; and said Dunne in like manner conveyed to said Breen the southeast half; and in each deed the description by metes and bounds included said line run as aforesaid by said Smith as a boundary line. The land was then, and ever since has been, used solely for the purpose of grazing; and after the date'of said deeds, each party occupied separately his supposed part of said rancho, as divided and designated by said Smith line. Said Patrick Breen died in December, 1868, and said James Dunne died in 1874. The plaintiff, Edward J. Breen, as heir and purchaser from other heirs, is the successor in interest of said Patrick Breen, deceased; and the defendants, as heirs and personal representatives, are the successors in interest of said James Dunne, de[304]ceased. The parties to this action have occupied said land in like manner as it had been occupied by said Patrick Breen and James Dunne in their lifetime.