Opinion
Rehearing Granted April 8, 1931.
Appeal from Superior Court, Mariposa County; E.N. Rector, Judge.
Action of ejectment by John Trabucco and another against A.R. Sorrels. Judgment for plaintiffs, and defendant appeals.
Affirmed.
COUNSEL
Edward J. Lynch, of San Francisco, and Charles L. Gilmore, of Sacramento, for appellant.
F.M. Ostrander, of Merced, and Louis T. Milburn, of Mariposa, for respondents.
OPINION
Mr. PLUMMER Justice.
The plaintiffs had judgment against the defendants in an action of ejectment involving the ownership of the east half of the southwest quarter of section 13, township 4 south, range 18 east, M.D.B. & M. From this judgment the defendant appeals.
At the conclusion of the trial the court made the following findings of fact:
"I. That the plaintiffs are, and ever since the 7th day of September, 1922, have been the owners in fee, and entitled to the possession of all that certain real property situate, lying and being in the County of Mariposa, State of California, and particularly described as follows, to-wit: (Here follows the description above given);
"II. That the east line of the east one-half of the southwest quarter of Section 13 Township 4 South, Range 18 East, M.D.B. & M., bears from a stone mound marked ‘¼ ’, being the quarter stone between Sections 12 and 13, T. 4 S., R. 18 E., M.D.B. & M., S. 5 deg. 18 min E. to a stone mound standing on ridge running to the southwest, as said east line and said stone mound are set out as ‘P. Trabucco’s southeast corner, stone mound identified by John Trabucco as quarter corner between sections 13 and 24,’ on that certain map introduced in evidence by plaintiff herein, and marked plaintiff’s exhibit 7."
The court further found that the defendant, on or about the 10th day of July, 1927, located a certain mining claim known as, and called, "Big Pine Number 1 Quartz claim," and placed the point of discovery within the boundaries of the lands found to belong to the plaintiffs, as hereinbefore described, and that the defendant was wrongfully in possession of the premises claimed by him. Conclusions of law were drawn to the effect that the plaintiffs were the owners of the premises described, and judgment went for them as herein stated.
Upon the trial of the action, and upon this appeal, the only question really presented for determination is the location of the south quarter corner of the lands described. On the part of the plaintiffs, it is contended that the original corner was found in place; that the original monument of the original United States survey was found in place, and so determined by the trial court. On the part of the defendant and appellant, the claim was and is made that the real quarter corner should be 351 feet west of the position described in the findings and judgment of the court. While there is conflicting testimony in the record as to the true location of the quarter corner referred to, if there is in the record testimony sufficient to support the findings of the trial court, then and in that case the judgment should be affirmed. If the testimony on the part of the plaintiffs, to the effect that the original corner set at the time of the original United States survey is still in place, and was in place at the time of the trial, and was the quarter corner referred to at the time the patent was issued for the lands and premises mentioned in the findings as belonging to the plaintiffs, then and in that case, irrespective of whether the original survey was or was not strictly accurate, the plaintiffs were entitled to judgment.
As stated in 9 C.J. 164, original corners as established by the government surveyors, if they can be found, or places where they were originally established, if they can be definitely determined, are conclusive on all persons owning or holding with reference thereto, without regard to whether they were located correctly or not, and must remain the corners or monuments by which to determine the boundaries.
If the testimony upon which the court acted was sufficient to show the actual existence of the corner as marked when the original survey was made, then all questions and all the citation of authorities relative to locating lost corners and lost monuments become immaterial.
With these preliminary statements, the following excerpts taken from the testimony, we think, support the findings of the trial court:
The witness C.A. Robinson, called on behalf of the plaintiffs, testified that he was a licensed surveyor in the state of California, and had been such since the year 1895; that at one time he was county surveyor of Mariposa county, and also of Merced county; had at different times been a United States deputy surveyor, located in California. This witness testified that he found the quarter corner in dispute; that one of the blocks of stone had chisel marks on it, to wit, "1-4," indicating the quarter corner, and from that corner, conforming to Mr. Winton’s, he used the field notes more carefully. Mr. Winton, called as a witness on the part of the plaintiffs, testified that he was a licensed surveyor; was, at the time of the trial, the city engineer of the city of Merced and the deputy county surveyor of the county of Merced; that he went with Mr. Robinson to the quarter corner, and found the stone marked as "1-4," with a small mound of rocks. Mr. Bertken, a witness called on the part of the plaintiffs, testified that he acted as flagman with A.G. Herrman, United States deputy mineral surveyor, when a township plat was made of township 4 south, range 18 east, and during the survey they camped on Pete Trabucco’s homestead; that, while he did not assist in locating the quarter corner of the south line of section 13, between sections 13 and 24, he was there when it was located; that he saw the men working in marking the corner, saw them establishing the monument; that they used rocks in making the monument; that he had visited the property off and on for thirty years; that he visited the place recently and pointed out where it was. This witness also described the topography of the country where the monument was located, and where it was established by the United States surveyor; that he was up there the Saturday preceding the trial, had no difficulty in locating the monument; that it was the quarter section corner on the south line of section 13. The witness Robinson, to whom we have heretofore referred, further testified as to the topography of the country; also recognized the photograph of the place where the monument is located; that he had no difficulty in finding the corner; that the monument he found there was, in his opinion, the original monument established when the Herrman survey was made. The witness Winton further testified that he used the field notes of the original survey, and that the field notes place the corner on the ridge of land theretofore described by the witness as being the place where the monument was found. This witness further testified that the corner as located and indicated on the map as the southeast corner stone mound, identified as hereinbefore stated, was the quarter corner section between sections 13 and 24.
The testimony set out in the record further shows that there was practically no dispute as to the quarter corner on the north line of the section, and that, following the field notes of the survey from the north quarter corner, the south quarter corner would be and was located at the place identified by the witnesses as hereinbefore stated, and also as found by the trial court.
As contradiction of the testimony which we have set out, the defendant called M.B. Nevins as a witness, who testified that he followed the field notes of the United States survey, and did not find them very accurate; that in going over the field notes he could not make them coincide with the ground. This witness further testified that the corner should be west of the position found by the trial court. The field notes of the original survey were introduced in evidence in relation to the corner in dispute, and read as follows: "On ridge to S.W. set ¼ sec. cor. Set oak stake 4′ sq. and 4 ft. long 12′ in ground, marked ¼ S. an N. Fac. Raised a md. of rocks 4 ft. in dia. at base l½ ft. high around stake. Pits impracticable. No bearings near. Descend on N. side of ridge." This corresponds to the testimony of the witnesses as to the place where the quarter section corner monument was found.
Referring again to 9 C.J. 164, § 18, we find the following: "Original corners as established by government surveyors, if they can be found, or the places where they were originally established, if they can be definitely determined, are conclusive on all persons owning or holding with reference thereto, without regard to whether they were located correctly or not, and must remain the true corners or monuments by which to determine the boundaries. Errors of location cannot be corrected by the courts or by surveyors called on to locate government corners and lines." In the same volume, as to relocation of corners as lost corners, the rule is set forth that, so long as the original corners remain marked and the monuments can be identified, the original survey is controlling. That the location of the corner to which we have referred was the only question in dispute satisfactorily appears from the following which we find in the record:
"Mr. Ostrander: The only corner in dispute is the southeast corner?
"Mr. Lynch: That is the only corner in dispute; this corner, the southeast corner of Mr. Trabucco’s place, is the corner of dispute."
From what we have stated, it satisfactorily appears that there is sufficient testimony in the record to sustain the finding of the trial court as to the existence of the monument marking the corner in dispute, as originally located by the United States surveyor at the time of making the original location. This being true, further consideration of the cases having to do with the fixing of the boundaries, cited by the respective parties, would seem to be superfluous. We may, however, call attention to the case of Churchill Co. v. Beal, 99 Cal.App. 482, 278 P. 894, where this court used the following language, quoting from page 490 of 99 Cal.App. 278 P. 894, 897: "If the original survey *** fixed the westerly boundary of the lands granted to the plaintiff and the plaintiff’s grantors as found by the trial court, then, and in that case, whether the line as originally located was correct becomes immaterial. It is the correct line in the determination of this action, as it fixes on the grounds the lands covered by the patents, the ownership of which has passed to the plaintiff in this action." The following California cases support the rules which we have just herein set forth: Kimball v. McKee, 149 Cal. 435, 86 P. 1089; Foss v. Johnstone, 158 Cal. 119, 110 P. 294; Weaver v. Howatt, 161 Cal. 77, 118 P. 519; Weaver v. Howatt, 171 Cal. 302, 152 P. 925; Spiers v. Spiers, 176 Cal. 557, 169 P. 73; Wilmon v. Aros, 191 Cal. 80, 214 P. 962.
The judgment is affirmed.