Thompson v. Southern California Motor Road Co.

Belcher, C. C. The plaintiffs seek by this action to obtain a decree restraining the defendant from going upon, or in any way interfering with, two lots of land, described as lots 2 and 5, in block 32, in the city of Col-ton, San Bernardino Comity, and to recover damages for past trespasses. The plaintiffs claim ownership of the lots, and the defendant claims a right of way over the same for the operation of its railroad, known as the motor road.

At the trial the defendant, in support of its claim of a [498]right of way over the lots, offered in evidence a deed made by plaintiffs to defendant, with the map attached thereto, marked “ Exhibit A.” ' That part of the deed which describes the property conveyed reads as follows: “A perpetual right of way over and across lots 2 and 5, in block 32, in said city of Colton,.according to the Col-ton Land and Water Company’s survey,, for the purpose of constructing, maintaining, and.operating said motor road, such right of way to be along the line as surveyed and laid out by H. C. Kellogg, civil engineer of said corporation, being a distance in length .of 1,113 feet, more or less, and running in a northerly and southerly direction, a map of which is hereto attached and made a part hereof."

The plaintiffs objected to the deed being received in evidence, on the ground that it was void for uncertainty, and therefore irrelevant and immaterial. The defendant then proposed to introduce further evidence showing that when the deed was executed the road had been commenced, and the line of the right of way, claimed under the deed and now occupied by the road, had been surveyed and designated by stakes stuck in the ground, so that it could be easily traced. The court thereupon overruled the objection, and the plaintiffs reserved an exception.

H. C. Kellogg was then called by defendant as a witness, and having testified that he was by profession a civil engineer and surveyor, and that he made the map attached to defendant’s deed, proceeded as follows:—

“Q,. You may state whether a survey or line was ever laid out from which the map was made, or which that map was made to designate. A. That map was made from an actual survey on the ground.

“Q. You may state whether or not that line was marked on the ground. A. Yes, sir; the line was marked on the ground by the stations every hundred feet. The stations were stakes eighteen inches long and