Hastings v. Stark , 36 Cal. 122 ( 1868 )

By the Court, Rhodes. J. :

The principal question in this case is, whether the premises in dispute are included* within the calls of the deed of Yaca to McDaniel, or stated more narrowly, whether the westerly line of the McDaniel tract lies to the west of the premises in suit. The defendants contend that the evidence is insufficient to justify the verdict in this respect. This deed was before this Court in Vance v. Fore, 24 Cal. 444, where it was said, in speaking of the termination of the first course—the base of the mountains—along which the western line runs: “Reference here is not to a visible object, but to a point the exact location of which can never be determined with absolute precision. Witnesses of equal intelligence, after giving the subject an equal amount of attention, might, and probably would, differ more or less in their conclusions concerning it.” The deed being admitted in evidence, the true position of the western line was a question of fact, to which the jury were to respond from the evidence; and there being no visible call in the line, which could be precisely established, it was for the jury, and not for this Court, to say which witness more nearly approximates in his testimony to the true line. If the line is run according to the “ Swan Map,” there is no doubt that the calls of the deed will include the land in controversy; and there is testimony in the case showing that the line should be placed even further to the west than in that map. Where one witness calls a certain elevation of land a mountain, and another calls it a hill, and says that the mountain is reached after passing over the hill and across a valley, the conflict in the evidence is so manifest, that the verdict upon the point to which the evidence was directed will not be disturbed by the appellate Court.

The point that the verdict is erroneous because no title was shown in Jeans, one of the plaintiffs, is answered by sections forty-four and forty-five of the Practice Act. Where the misjoinder of parties plaintiff does not appear upon the face of the complaint, and the objection is not taken by answer, it is deemed waived. (Gillam v. Sigman, 29 Cal. 639.)

The first and second instructions given at the request of the plaintiffs are susceptible of improvement in point of perspicuity, but'they are not so defective as to be calculated to mislead the jury. The deed referred to in the first instruction was that from Vaca to McDaniel, for the only controversy between the parties related to one of the calls of that deed. The instruction would be objectionable in assuming that the defendants were in possession of the premises, had there been any contest on that point; but the defendants really conceded that point by claiming the benefit of the legal presumption of title, arising from the fact of their possession.

There is no valid objection on the part of the defendants to the second instruction. If there is any uncertainty in the calls of a deed—that is, if either one of two or more objects will answer the call, so that the line will run in two or more positions and still harmonize with the other calls of the deed—the parties to the deed may adopt either line, and, when one is thus established, it concludes both parties. They are presumed to understand the description of the land conveyed, and their acts in locating the lines, in such a case, are evidence that the lines established by them are correct. The force of the instruction was somewhat impaired by requiring the acquiescence of the parties for the term of five years in the line thus established. Such acquiescence would probably be requisite in order to give validity to a line not located according to the calls of the deed, but when the parties, by running and marking the line upon the land, identify a call which, from the language of the deed, is left in uncertainty, acqqiescence will add nothing to the conclusiveness of the location of the line.

Judgment affirmed, and remittitur ordered to issue forthwith.