Peters v. De Rose Gracia

The Court. There are four certain swamp land surveys in Sacramento county which are numbered, respectively, and extend in a continuous chain along the east bank of the Sacramento river from south to north, in the following order: 147, 165, 282, and 173. The tracts 147, 165, and 173 were surveyed in the year 1858, and tract 282 in 1859; all under the act of April 21, 1858, providing for the sale, etc., of swamp and overflowed lands. (Stats. 1858, p. 198.) By section 11 of that act surveys of lands held by actual settlers were required to conform to the lines and boundaries established by such settlers. This action—begun April 23, 1892—is prosecuted by plaintiff, the present owner of said survey 282, to quiet his alleged title to a strip of land lying along the common boundary of said surveys 282 and 165—the north line of 165 and the south line of 282. Defendants own said tract 165, and the question involved relates to the true location of said common boundary. At the time said surveys were made it seems that one Watson was a settler on tract 165, and one Angus Boss on tract 282; patents from the state for the lands were issued in course; in the year 1861 one Casselli became the owner of the land in survey 165; about 1869 he conveyed the same to the brothers Gracia—Joseph and Manuel; upon the death of both of them, a few years before the commencement of this action, their title passed to the defendants; survey 282 was owned in 1861 by a person designated in the record as Miss Boss; she conveyed it to plaintiff in 1865. Of the four parcels mentioned No. 147 was first surveyed; then the northwest corner of such tract 147 was adopted as the initial point for the survey of 165; thence the east bank of the river was meandered northerly, as the field notes show, “ to a stake on the levee at the end of a partition fence dividing Watson and Boss’ land”; and thence the line, now in dispute, quitting the river ran “ with said fence south 84 degrees, 30 minutes, east 65.39 chains,” etc. When tract 282 was surveyed the starting point adopted was the northwest corner of sur[92]Vey 165, viz., the stake at the end of said partition fence. At present a fence and ditch serve, and for many years have served, to delimit the possession of the two tracts and these are claimed by defendants to be substantially on the line of the partition fence of 1858. The court found, however, that the .old fence was destroyed by the freshet of 1861-62, which devastated that region, and was rebuilt a few paces further north within the exterior limits of survey 282. From this fact, and other evidence, the court concluded that the true boundary is a little to the southward of the existing fence and ditch, and, overruling also the defense of the statute of limitations interposed by defendants, gave judgment awarding the land in dispute to plaintiff.