Morcom v. Baiersky

JAMES, J. Action to quiet title to and for possession of a certain lot of land in the city of Los Angeles. Judgment^, was in favor of defendants. The appeal is from the judgment and from an order denying a motion for a new trial, presented on a bill of exceptions. Insufficiency of the evidence to justify the decision and the ruling of the trial judge in admitting in evidence a certain map are urged as grounds for reversal. The appeal from the judgment was taken more than sixty days after entry thereof; this appeal, therefore, was taken too late to authorize this court to consider the question of the sufficiency of the evidence to sustain the decision. (Code Civ. Proc., sec. 939, subd. 1.) Nor can the evidence be reviewed to determine the question as to whether or not it is sufficient to sustain the judgment, on the appeal from the order denying the motion for a new trial. It is nowhere, shown in the record upon what grounds that motion was made. Por aught that appears, the ground of insufficiency of the evidence may not have been urged in the court below at the hearing of the motion. The transcript shows the order of the court denying the motion for a new trial, wherein it is *482 stated that the motion was presented upon the grounds set forth in the notice of intention on file, but this notice of intention is not made a part of the record; nor does the order of the court show that the motion was presented on the bill of exceptions. Therefore, the decision in the case of Williams v. Hawley, 144 Cal. 99, [77 Pac. 762], is in point, to the effect that in a case where the record is in the state of that which is here presented, the order made on the motion for a new trial cannot be reviewed. There is left to be considered, therefore, only as to whether or not the trial court committed error in admitting in evidence a certain map which was produced by the witness Solano. The determination of the controversy between plaintiffs and defendants involved in part the question as to whether or not the northerly boundary line of the city of Los Angeles as now located is identical with that line as formerly established. Defendants for a number of years had owned and occupied lot 1 of what are called the Carnal and Reservoir Lands. The plaintiffs are the owners of lot 8 immediately adjoining and south of lot 1. For nearly f ourteen years a hedge ■ of trees has stood along the south boundary line of lot 1 as it was claimed by defendants to be located. Plaintiffs made the claim that this hedge was located too far south and that it included a portion of lot 8 owned by them. The point to be established, therefore, in the case was as to the true location of the boundary line between lots 1 and 8. As lot 1 shown upon the original plat was bounded on the north by the north boundary line of Los Angeles city, as to whether or not any change had1 been made in this north city boundary line became an important matter of evidence in the ease. Some of the surveyors who testified at the trial located this boundary line farther north than it is at present established, and other surveyors testified that the line as at present established was located practically at the same place as it previously had been. Some of the latter witnesses testified to finding rocks which appeared to have been placed by surveyors in different situations at the north of the tract, and which rocks indicated points at and near the north city boundary line as it is at present located. The witness Alfred Solano was then called to identify a map which the court afterward admitted in evidence. The witness was a civil enginéer, and he stated *483 that the map produced was a map made in about the year 1870 in the office of William Moore, a surveyor, by one Siebolt, under the direction and from field-notes made by Mr. Moore; that Siebolt was also a surveyor. The witness further stated that he, in pursuance of his occupation as a surveyor, had afterward checked up this map while running lines upon the ground, and that he had found it to be correct, and that it had been used as a reference map in the office for a good many years. This map was the original map of the survey of the Canal and Reservoir Lands as made by William Moore. The witness testified that the recorded map was a copy taken from that original, and that the copy did not show all of the data that appeared upon the original; for instance, the original map showed rock monuments placed at corners of lots where the same abutted upon the street or intersected the north boundary line of the city. The witness had not resurveyed the particular lots the boundary line of which was involved in this action, but he had checked over many of the remaining lots and blocks "in the tract, and testified that he was quite positive that the map was correctly made from the field-notes of William Moore. The value of this map as evidence in favor of the defendants was largely by way of showing the fact that rocks were placed in the original survey of the tract, as monuments along the north city boundary line. This evidence tended to corroborate the testimony of those surveyors who located the present north city boundary line at the same place it had been located at the time of the original survey of the canal and reservoir lands. We think the court committed no error in admitting this evidence. The evidence of the witness Solano was sufficient, in our opinion, to show prima facie that the map correctly delineated the lines and points marked thereon. The matter of the weight to be given to the evidence, of course, was a question for the trial court. It is not shown by the record as to whether or not William Moore, and Siebolt, the draughtsman, were dead at the time of the trial of the action, but if it was a fact that these men who prepared the map were then dead, there would have been ample ground to justify the admission of the evidence under the authority of the decision in Morton v. Folger et al., 15 Cal. 275. However, the witness Solano was a civil engineer, had seen the map made, had checked over a large part of it *484 by actual surveys on the ground, and the map had! been used as a reference map by surveyors for a good many years. Moreover, the witness testified that he was quite positive that it was correctly made, and' this, we think, as before stated, established prima facie a sufficient foundation to authorize the admission of the map in evidence. The judgment and order are affirmed. Allen, P. J., and Shaw, J., concurred.