Burke v. McCowen

Haynes, C. This is an action in ejectment. The-cause was tried by the court without a jury, and findings and judgment were in favor of the defendant. The plaintiff appeals from the judgment, and an order denying a new trial.

Thp plaintiff owns lots 2 and 8 in block P of Ukiah North Addition, and the defendant owns lots 1 and 10 adjoining plaintiff’s lots on the south. The only question of fact was as to the location of the line dividing the lots of the respective parties, the plaintiff claiming that the defendant was in possession of ten feet belonging to his lots.

[483]Both parties claim under conveyances made by the North Pacific Land and Improvement Company, by whom the said addition was surveyed and platted. Lots 1 and 10 were conveyed'by said company to the defendant November 21, 1890, by the- following description: “Lots numbers 1 and 10 in block F, in Ukiah, North Addition, as the same are laid down and delineated on the map of Ukiah, North Addition, filed in the office of the county recorder of the county of Mendocino, state of California, on the eighteenth day of September, 1889.”

Lots 2 and 8 were conveyed by the same grantor to the plaintiff September 14, 1893, by the following description: “Being lots numbers two (2) and eight (8) in block F, as the same are laid down and delineated upon the map of Ukiah, North Addition, filed in the office of the county recorder, in the county of Mendocino, state of California, on the eighth day of May, 1893.”

Neither of these deeds contained any statement as to the size of the lots otherwise than by the reference to these maps, nor were the sizes of the lots marked upon the lots on the map, nor any reference marked upon the maps tending to indicate their size other than the following. On the first of these maps there was the following note: “Note—All full-sized lots are 50x145 feet” ; and upon the second map it was noted: “ Scale —200 feet, 1 inch.”

The first of these maps was made by “ Geo. P. Aston, surveyor and C. E., Los Guilicos, Cal.,” and the second map was made by S. H. Rice. Mr. Rice testified that his map, as to block F and other blocks in that vicinity, was a copy of the first map, and that no intentional changes were made in that part, nor did he make any survey of block F or other blocks in that vicinity. That this map was intended to show a boulevard that he had laid out, and some changes were made necessary thereby in other parts of the addition. Applying the scale to what appeared to be full-sized lots on the origi