Somers v. McMordie

MELVIN, J. Suit was commenced by William F. Somers to quiet his title to the northeast quarter of the northeast quarter of section 27, township 3 south, range 14 west, San Bernardino meridian, containing, according to the allega[359]tions of the complaint, forty acres. Mrs. McMordie, the respondent here, answered, admitting the title of Somers to all of said land, except a small portion thereof, and asked to have her title quieted as against Somers to lot 1, section 27, township 3 south, range 14 west, San Bernardino meridian, which was described also in her pleadings by metes and bounds. Before trial plaintiff dismissed as to the fictitious defendants.

There is a statement of stipulated facts wherein, among other things, it is agreed by these litigants that both parties derive title to their respective lands through patents issued ■by the state of California under indemnity lists duly approved and certified by the Secretary of the Interior; that the government plat of the survey of said lands shows Somers’ land as containing forty acres and the McMordie lot as having an area of twenty-one and thirty-eight hundredths acres; that there is a shortage of four and forty-four hundredths acres in the two tracts; that this deficiency was imposed in the judgment upon the parties hereto according to their several proportions of the whole acreage embraced in the boundaries of the two tracts, the plaintiff Somers being given by this method thirty-six and ninety-one hundredths acres and the defendant McMordie twenty and three hundredths acres; and that the sole question on the appeal from the order denying the motion for a new trial is whether or not the court erred in apportioning said land as set forth in the judgment and decree. It is also agreed that the measurements of the exterior lines of the two tracts are as indicated upon a certain plat attached to the stipulation. Appellant asserts that the cause was decided by the learned judge of the superior court in an effort to comply with section 2395 of the United States Revised Statutes (6 Fed. Stats. Ann. 363; U. S. Comp. Stats. 1901, p. 1471), and the rule of “proportionate measurement” as used in the circular of instructions in relation to lost or obliterated corners, approved by the Secretary of the Interior October 16, 1896 (23 Land Dec. Dep. Int. 361), and respondent’s brief contains an assertion that the court was governed by sections 2395, 2396, 2397 of the United States Revised Statutes (6 Fed. Stats. Ann. 363-369, U. S. Comp. Stats. of 1901, pp. 1471-1473), and the circular of the Secretary of the Interior mentioned above. These sections have reference to the rules to