Hyman v. Haun

• Decision Date: 09 May 1961
• Citation: 13 Cal.Rptr. 87,191 Cal.App.2d 891
• Court: California Court of Appeals
• Parties: Frank J. HYMAN and Nellie Howard Hyman, his wife, Plaintiffs and Appellants, v. Helen G. HAUN, Defendant and Respondent. Civ. 10016.

Page 87

13 Cal.Rptr. 87

191 Cal.App.2d 891

Frank J. HYMAN and Nellie Howard Hyman, his wife, Plaintiffs and Appellants, v. Helen G. HAUN, Defendant and Respondent.

Civ. 10016.

District Court of Appeal, Third District, California.

May 9, 1961.

Rehearing Denied June 1, 1961.

Hearing Denied July 5, 1961.

Rawles, Nelson & Golden, Ukiah, for appellants.

Leo M. Cook, Ukiah, for respondent.

SCHOTTKY, Justice.

Frank J. Hyman and Nellie Howard Hyman, his wife, brought this action to quiet title against Helen G. Haun to a strip of land adjacent to the south bank of the Noyo River in Mendocino County. The court refused to quiet title to the land in the Hymans and this appeal followed.

The property involved in this litigation at one time belonged to Ralph W. Todd, the father of Helen G. Haun. Prior to his death Ralph W. Todd sold certain parcels of land abutting the high-water line of the south bank of the Noyo River to third parties not involved in this action. After his death the Hymans and some people named Penitenti acquired a tract of land from his estate. (The Penitenti interest has been acquired by the Hymans.) The remainder of the land was distributed to certain heirs of the deceased, including Helen G. Haun. She later acquired the interest of the other distributees.

It appears that prior to the execution of the deed the administratrix of the Todd estate made arrangements with the Hymans and the Penitentis to sell them 10 acres off of the north end of the estate property. A licensed land surveyor by the name of William K. Dodge was employed and instructed to prepare a map and a description. He did not make any survey but had maps from which he did his work, and he mapped out a tract of land containing exactly 10 acres. However, the north line he took did not go to the high-water mark of the river, but it went to an old meander line, which along the west side of the description lacks 124 feet from going to the high-water mark. At a later date one Maguire surveyed the lines laid out by Dodge, and it is shown that at no place did such description reach said high-water mark. In due time a deed was made by the administratrix to Mr. Penitenti, the predecessor in interest of the plaintiffs, which deed contained the following descrition:

'All that certain real property situate in Section 18, Township 18 North, Range 17 West, Mount Diablo Base and Meridian, in the County of Mendocino, State of California, more particularly described as follows, to-wit:

'Beginning at a point in the Easterly boundary of State Highway No. 1 (1-Men-56-E) from which the Southwest corner of said Section 18 bears South 0~37'33"' West, 2621.03 feet distant. Also, from said point of beginning a copper wire in center of a 6 inch square concrete monument 4 inches out of ground, 50 feet distant at right angles Easterly of Engineer's Station 500 + 23.01 E. C. on the centerline survey of said State Highway, bears South 7~48'30"' West, 29.00 feet distant; thence from said point of beginning and along the exterior boundary lines of the land to be described as follows:

'North 7~48'30"' East, along the East boundary of said State Highway, 1169.00 feet to highwater line on the Southerly side of Noyo River; thence along said highwater line as follows: South 76~00' East, 230.00 feet; thence South 3~00' East, 693.00 feet; thence South 24~00' East, 545.40 feet; thence leaving said highwater line, North 82~11'30"' West, 646.08 feet to the point of beginning, containing a calculated area of 10.00 acres, more or less.'

Thereafter the plaintiffs, claiming that the north line of the land conveyed to them was the high-water mark of the Noyo River and not the meander line fixed by Dodge, brought suit against the defendant to quiet their title herein to the following described property:

'Beginning at a point in the Easterly right of way line of State Highway No. 1 (1-Men-56-E), said point being S 82~11'30"' East 50 feet from Engineer's Station 500 + 52.01 P.O.T. and from which point the southwest corner of Section 18, Township 18 North, Range 17 West, M.D.M. bears South 0~37'33"' West, 2621.03 feet; thence from said point of beginning, North 7~48'30"' East along the East line of said Highway 1302.77 feet to the ordinary high water mark of the southerly side of Noyo River as said ordinary high water mark was established by the State Lands Commission and as shown on Sheets 1 to 9 of Map Case 1, Drawer 10, Page 42, Mendocino County Records, said East line of Highway crossing the ordinary high water mark between stations S 11 and S 12 of said Survey; thence following along he ordinary high water mark Southeasterly to a point S 82~11'30"' E from the point of Beginning; thence N 82~11'30"' west to the point of beginning.'

It should be pointed out that this latter description does not close at the southeast corner.

At the beginning of the trial plaintiffs filed an amended complaint. This time they excluded from the land they claimed certain property lying along the high-water mark of the Noyo River which had been sold by Ralph W. Todd to third persons. In the amended complaint the distance along the east line of the highway to the ordinary high-water mark of the southerly side of the Noyo River was 1293 feet instead of 1302.77 feet as in the original complaint. It should be noted that the only way the description in the amended complaint closes is by the setting up of some arbitrary lines which find no evidentiary support in the record.

The foregoing descriptions and the contentions of the parties are graphically illustrated in plaintiffs' Exhibit 12, a facsimile of which is here reproduced.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This map shows that the land described in plaintiffs' original complaint is approximately 17 acres and that the land described in the amended complaint is approximately 14 acres, while the land described in the deed from the Todd estate to plaintiffs' predecessors in interest amount to 10 acres.

The dispute arises from the fact that the high-water line of the Noyo River is some 1293 feet from the point of beginning, not some 1169 feet as described in the deed. If the high-water line is used, and the property previously conveyed is excluded, the area described is approximately 14 acres. If the metes and bounds calls are used, a parcel of land of about 10 acres is produced. If the high-water mark is used, it cuts into property conveyed by the decedent to third parties prior to the time...