Rahlves & Rahlves, Inc. v. Ambort

• Citation: 258 P.2d 18,118 Cal.App.2d 465
• Court: California Court of Appeals
• Decision Date: 12 June 1953
• Parties: RAHLVES & RAHLVES, Inc. v. AMBORT et ux. Civ. 8176.

Page 18

258 P.2d 18

118 Cal.App.2d 465

RAHLVES & RAHLVES, Inc. v. AMBORT et ux.

Civ. 8176.

District Court of Appeal, Third District, California.

June 12, 1953.

Rehearing Denied July 3, 1953.

Hearing Denied Aug. 6, 1953.

Royal E. Handlos, San Francisco, for appellants.

Chalmers, Cowing & Sans, Woodland, for respondent.

SCHOTTKY, Justice.

This is an appeal by defendants from a judgment quieting plaintiff's title to certain real property 'as delineated on and according to the map of Rahlves Addition filed of record' in the office of the County Recorder of Yolo County.

Appellants urge several grounds for a reversal of the judgment but before discussing these we shall summarize briefly the factual situation as disclosed by the record.

Respondent and appellants are adjoining landowners, appellants' land being located to the north of the land of respondent. The parties acquired title, through predecessors, from a common grantor, appellants' deed having been recorded 1 minute prior to that of respondent, on December 1, 1882. The descriptions in the conveyances of appellants' title show a starting point 20 rods south of the northeast corner of the southeast quarter of section 31 in the particularly described township. The conveyances to respondent's property commence at a point 40 rods south of the same northeast corner of the southeast quarter of section 31. Appellants acquired title in 1938 and respondent acquired title in 1950. Following acquisition of its property in 1950, respondent caused a subdivision map to be prepared and recorded as the Rahlves Subdivision, and houses were then built on the lots and sold. It has been the contention of appellants throughout the litigation that the subdivision map does not conform to respondent's record title but rather shows on its face an overlap of about 2 1/2 feet onto the southern portion of appellants' property because of the difference between the map and the description in respondent's record title.

Respondent brought the instant action to quiet title against appellants as to certain described real property 'as delineated on and according to the map of Rahlves Addition filed of record.' Appellants' answer was a general denial and an affirmative assertion of ownership as to the amount of overlap which they alleged the subdivision map reflects through its asserted inconsistency with the respondent's record title. The answer also contained as a special defense the allegation that the subdivision map had not been properly executed as required by sections 11589, 11590, of the Business and Professions Code, this latter portion of the answer having been stricken upon respondent's motion.

Following a trial before the court without a jury, the court found that respondent was the owner of the land 'as delineated on and according to the map of Rahlves Addition filed of record'; that appellants owned the land as described in their chain of title; that respondent acquired title in 1950, which deed was recorded; that the subdivision map includes no portion of appellants' property. Judgment was entered in accordance with said findings, and appellants' motion for a new trial was denied.

Appellants' first contention is that the admitted facts and the findings that the plaintiff and the defendants acquired title according to exhibits A and B attached to the amended answer are conclusive and binding on the court, and any evidence offered and any findings made in contradiction to these admitted facts was error.

Appellants point out that the deeds by which respondent and appellants acquired their respective properties were attached to appellants' answer as exhibits and that, by respondent's failure to file an affidavit denying it, the genuineness and due execution of said deeds were admitted under section 448 of the Code of Civil Procedure, and that according to said deeds the description of appellants' land commences at a point twenty rods south of the northeast corner of the southeast quarter of section 31 in Township 10 North, Range 2 East, M.D.B. & M., and the description of respondent's land begins at a point 40 rods south of said northeast corner of said southeast quarter. There is in the instant case no controversy as to the descriptions in the deeds or their due execution. The controversy arises over the true location of the starting point for the description of respondent's land and for the description of appellants' land. The question to be determined, and which was determined by the trial court, was: Where is the correct location of the northeast corner of the southeast quarter of Section 31, Township 10 North, Range 2 East, M.D.B. & M.?

Asa Proctor, licensed land surveyor and civil engineer, who had been engaged in land surveying and civil engineering in Yolo County since 1908, and who was at one time County Surveyor of Yolo County, was the principal witness for respondent at the trial, and we shall give a brief summary of his testimony.

He testified that before making the survey for the respondent's subdivision he inspected the government notes relative to the government survey of section 31 and examined the deeds on record relating to respondent's property and surrounding properties; that West Street in Woodland, running in a general north-south direction, is the east-west dividing line between section 31 and section 32; that Pendegast Street intersects West Street, and constitutes a quarter dividing line for those sections; that the lands here in question are in the southeast quarter of section 31, and have West Street for their eastern boundary. Proctor started by taking the southern line of occupancy of the Rahlves tract. He then measured northward to the iron pin located in the intersection of West and Pendegast Streets, which pin had been used in a number of previous surveys of section 32, which adjoins section 31 on the east, but in Proctor's judgment this iron pin did not represent the true U. S. Government survey corner in the east line of section 31 because the distance from the monument at the southeast corner of section 31 to iron pin located in the intersection of West and Pendegast Streets is 2,636.45 feet, whereas the distance from the said iron pin to the northeast corner monument is 2,648.02 feet. He, therefore, determined the location of the occupied southeast corner of the Rahlves property boundary with the property of the owner (Deckman) on the south side of the Rahlves property. This he found to be 1,320.55 feet north of the southeast corner of section 31. The monument from which this measurement was taken has been in place for a great many years and is a corner common to sections 31, 32, 5 and 6.

Section 31 has a surplus of 4.48 feet in it caused by errors in making the United States Government surveys with chains, inaccurate instruments, adverse conditions and the human element of error. Very few sections of land are true sections, especially one such as section 31, which is along a range line. They usually have a surplus or a deficiency in measurement. The distance to point No. 2, Plaintiff's Exhibit No. 1, a quarter of a quarter section, though it did not include exactly a quarter of said surplus, conformed closely.

Theoretically, a section of land is one mile square, although there are frequent variations, and therefore the east line of section 31 should be 5,280 feet long, each quarter of the section should have an east line of 2,640 feet long and each quarter of a quarter section should have an east line 1,320 feet long. Each side of respondent's property theoretically should be 660 feet long.

A survey line was then run along the occupied boundary on the south side of plaintiff's property from said point westerly to the center of the section where fences from the south, north and east intersected and they found the distance to be 1,320.75 feet or only .75 of a foot more than it should be, and the distance to the west line of the plaintiff's property was 659.56 feet or .44 of a foot less than it should be.

Proctor found a fence and trees along this south boundary of plaintiff's property. He found a fence running north and south at the west boundary of plaintiff's property and halfway between the southeast corner of plaintiff's property and the center of the section. The fences running north and south from the center of section 31 were old fences.

The distance from the occupied southeast corner of respondent's property to the iron pin at the intersection of West and Pendegast Streets was 1,315.90 feet and a reference point was established at half said distance or 657.95 feet north of plaintiff's southeast corner and was about a foot or more south of the occupied boundary between plaintiff and defendants.

There was no fence between the properties of plaintiff and defendants at the time Proctor made his survey. Plaintiff's land was an alfalfa field and defendants' a cultivated orchard. There was a levee along the occupied line that served as a bulkhead against the encroachment of irrigation waters from one tract to the other.

The west line of plaintiff's property was fenced to within a distance of the span of one post from the northwest corner of plaintiff's property. At the time of the survey the fence was not standing at the corner but the fence was composed of wire and barbed wire and the corner post was attached to the wire. Proctor and his survey crew straightened out the fence and stretched it north. They then excavated at a point immediately below the post that was attached to the wire of the fence and found the lower portion of the post that was attached to the fence. It was rotted off. They put in an iron pin at the center of the rotted post and found it to be 659.20 feet from the southeast corner of plaintiff's land.

In view of the fact that there was no visible marker at the northeast corner of plaintiff's land, Proctor set the point for the northeast corner well back on plaintiff's property a distance 1.25...