Freeman v. Bellegarde

California Supreme Court Jul 18, 1895 No. No. 15606Published

Before: Harrison

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Holding. The court held that while the thread of the creek is the boundary for the original mortgage, the subsequent conveyance to Hewston, which used the 'shore' as a boundary, limited the plaintiffs' title to the shore line rather than the center of the creek. Consequently, the defendants Thomas and Luty hold title to the land between the shore and the thread of the stream.

Issues

Whether the 'thread of the creek' or the 'shore' constitutes the boundary of the land conveyed in the respective deeds.
Whether the courses and distances in a deed prevail over a natural monument like a creek.
Whether the grantor's ownership of the bed of a tidal stream allows a riparian grant to extend to the thread of the stream.

Disposition. reversed in part and affirmed in part

Quotations verified verbatim against the opinion

“The call in the mortgage “ to mouth of creek” rendered the thread of the creek the boundary of the land mortgaged.”

“The creek is the boundary of the land conveyed, and the courses and distances, being only approximate estimates of the direction and length of the boundary, must yield to the actual line of the creek.”

“Whatever land lies between this boundary and the center of the creek is vested in the defendants Thomas and Luty”

Synopsis

Conveyance—Description — Physical Boundary—Central Point.—In the absence of any qualifying term, the designation in a conveyance of any physieial object or monument as a boundary implies the middle or central point of such boundary.

Id.—Construction of Private Grant—Designation of Tidal Stream as Boundary—Thread of Stream—Presumption.—A private grant is to he interpreted in favor of the grantee; and, where the grantor in a private conveyance is the owner of the bed of a tidal stream, which is designated as a boundary of land granted or mortgaged, the conveyance or mortgage will be held to extend to the middle line or thread of the stream, and the general presumption is that the title of a purchaser or mortgagee extends as far from the shore toward the thread of the stream as the grantor owns, in both tidal and fresh waters.

Id.—Middle Line of Creek must Prevail over Courses and Distances. Where a creek is made the boundary of the land conveyed, and the calls of the conveyance ascend the creek, the line ascending the creek follows the thread of the stream, and the courses and distances must yield to the actual line of the creek.

Id.—Line Ascending and Crossing Creek—Crossing from Thread of Stream.—A call for a line ascending a creek, and then crossing the creek to the end of an old wall, is not inconsistent with holding that the call ascending the creek follows the thread of the stream, and the next course will be deemed to cross the creek from the thread of the stream toward the end of the wall.

Id. — Boundary by Shore of Stream — Intersection of Ditch with Shore.-—In the absence of any qualification a grant bounded, by the shore of a river or stream, when the grantor is the owner thereof, conveys the land up to the lowest point of the shore at any time; but it is '■competent for the grantor to so designate the line on the shore which shall constitute the boundary, that there shall be no uncertainty in its location, and, where the starting point of the description is the intersection of a ditch with the shore line, the starting point is susceptible of exact location, and the term “shore” must be construed in the same ■ meaning wherever used in the conveyance.

Harrison, J. Action to quiet title to certain lands in San Francisco. The lands described in the complaint are a portion of the Bernal rancho, and the controverted question in the action is the title of the plaintiffs to that portion of the lands described in the complaint which lies between the south shore of Islais creek and the thread of the stream. Islais creek empties into the bay of San Francisco, and the tidal waters of the bay ebb and flow in the creek for some distance above its mouth. At the line of the land claimed by the plaintiff nearest the bay the creek is, at ordinary high tides, three hundred feet wide, and the ground at that point that is covered and uncovered by the ebb and flow of the tides has a width of one hundred and fifty feet between the bank of the stream and the line of ordinary low-water mark. At high tide the water nearest the bay is about three feet deep, and at a point below the lands in controversy there is at low tide no water in the creek, thus rendering the creek a mere basin which is filled and emptied by the ebb and flow of the tide. The patent for the Bernal ranch covers the bed of Islais creek and the land on both banks thereof, and includes all the lands described in the complaint. The title of the plaintiffs to the land in controversy is derived through the foreclosure of a mortgage given by the Bernals to J. Mora Moss, and a subsequent conveyance from the grantees under the Moss foreclosure to John Hewston, and depends upon the construction to be given to the description in the mortgage and sheriff’s deed there[184]under and to the description in the conveyance from Moss’ grantees to Hewston. The plaintiff had judgment in the court below, and defendants have appealed therefrom and from an order denying a new trial.

1. The description of the property in the mortgage to Moss, so far as the same affects the present action, is as follows: “ . . . . Thence along margin of the bay (giving four courses and distances) .... 11 chains to mouth of creek; thence ascending said creek (giving thirteen courses, with their distances) . ... 1ST. 45°, W. 9 chains 50 links, crossing the creek to the end of the old wall on IST. side of marsh .... containing area of 1,958 acres, more or less, according to a survey by 1ST. Scholfield, deputy U. S. surveyor general.” This description in the mortgage was carried into the. sheriff’s deed issued upon the sale under the foreclosure, and the title to the land thus conveyed afterward became vested in Pioche and Robinson.

In Spring v. Hewston, 52 Cal. 442, the description in this mortgage was before the court, and it was held that the creek, rather than the line determined by the courses and distances, was the true boundary of the land embraced in the mortgage. The call in the mortgage “ to mouth of creek” rendered the thread of the creek the boundary of the land mortgaged. In the absence of any qualifying term the designation in a conveyance of any physical object or monument as a boundary implies the middle or central point of such boundary; as, for example, if the boundary be a road or highway, or a stream, the thread of the road or stream will be intended; if a rock, a heap of stones, or a tree be the boundary the central point of such tree or rock or heap of stones will be intended. A private grant is to be interpreted in favor of the grantee, and, if the grantor is the owner of the monument or boundary designated in his grant, his conveyance will be held to extend to the middle line or central point of such monument or boundary. This rule is not changed by reason of the fact that a stream which is designated as the boundary is a tidal stream,

Freeman v. Bellegarde

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