United Land Ass'n v. Pacific Improvement Co.

A rehearing was granted in these cases on the ground, as claimed by the appellants in their petition for a rehearing, that some portion of the land involved in the controversy lies outside of the pueblo patent line. Both cases relate to the same lands, and were submitted on the same briefs and arguments, No. 2021 being an action to quiet title, and the other an action in ejectment. *Page 374 After further argument and a re-examination of the cases, we are satisfied the contention of appellants in their petition on this point cannot be sustained. The plaintiffs and appellants deraign title under two certain deeds from the state tide-land commissioners to George W. Ellis, bearing date November 24, 1875. The first deed offered by plaintiffs, and admitted in evidence, covers the salt marsh and tide-land at and near the mouth of Mission Creek. The other deed embraces land higher up the creek, and of course a considerable distance within the pueblo line, and it will be necessary, therefore, to notice only the first deed. The description in this deed of the two tracts at the mouth of Mission Creek on or near the bay is as follows: "Beginning at the intersection of the northerly line of Eighth Street with the easterly line of Berry Street, thence south 45 degrees E. along the northerly line of Eighth Street, ninety-nine (99) feet and ten (10) inches to the easterly line (if extended) of De Haro Street, thence N. 4 1/2 degrees W. nineteen (19) feet and ten (10) inches to the southerly line (if extended) of Alameda Street, thence at right angles N. 85 1/2 degrees E. two hundred (200) feet to the westerly line (if extended) of Carolina Street; thence at right angles S. 4 1/2 degrees E. 33 feet and five (5) inches to the westerly line of Channel Street ninety-six (96) feet and (1 1/2) one and a half inches to the shore line of Mission Bay at ordinary high tide, thence along said shore line N. 29 1/2 degrees W. one hundred and seventy-two (172) feet and eleven (11) inches to the westerly line (if extended) of Carolina Street; thence S. 4 1/2 degrees E. one hundred and nineteen (119) feet nine (9) inches to the northerly line (if extended) of Alameda Street; thence S. 85 1/2 degrees W. two hundred (200) feet to the easterly line (if extended) of De Haro Street, thence N. 4 1/2 degrees W. forty-five (45) feet four and one-half (4 1/2) inches to the easterly line of Berry Street, thence S. 45 degrees W. along the easterly line of Berry Street eighty-five (85) feet and three (3) inches to the point of beginning. Being a tract of salt marsh adjacent to Mission Bay, comprising a part of block numbered forty (40), and containing an area of twenty-five thousand four hundred and sixty (25,460) square feet. Also beginning at a point on the westerly line of Berry Street distant fifty (50) *Page 375 feet and six (6) inches northeast of Eighth Street; thence N. 45 degrees E. along the westerly line of Berry Street one hundred and five (105) feet and two inches to the easterly line (if extended) of De Haro Street; thence along the same N. 4 1/2 degrees W. two hundred and six (206) feet and one and one-half (1 1/2) inches to the southerly line of Channel Street; thence at right angles along the southerly line of Channel Street S. 85 1/2 degrees W. eighty (80) feet to the westerly line (if extended) of De Haro Street; thence along the same S. 4 1/2 degrees E. two hundred and seventy-four (274) feet and five (5) inches to the point of beginning. Being a tract of salt marsh near Mission Bay comprising a part of block numbered forty-one (41) and containing an area of nineteen thousand two hundred and twenty (19,220) square feet." It will be seen from the foregoing that at no point in the description contained in this deed is the boundary carried below the shore-line of Mission Bay at ordinary high tide, or, in other words, below the pueblo patent line at that point. The other described parcels in this deed — as well as all of the parcels contained in the other deed — are still further up Mission Creek, and of course cut no figure in the question under consideration. Whether the description in the complaints, or either of them, or in the so-called possessory or pre-emption claim of Ellis, coincides in every particular with that contained in the deed referred to is quite immaterial; the only title relied upon by the plaintiffs and appellants is that purporting to have been conveyed by the deeds, and the described premises being entirely pueblo lands these deeds of the tide-land commissioners conveyed no title whatever. (See authorities contained in the department opinion.) The other points noted in the petition for rehearing will not be considered, as they are sufficiently covered by the opinion in department, which opinion is hereby adopted. The orders appealed from are affirmed. Angellotti, J., McFarland, J., Shaw, J., Lorigan, J., and Henshaw, J., concurred. The following is the opinion rendered in Department Two, in case No. 2021, August 22, 1902. (Case No. 2022 was *Page 376 decided in Department Two on the same day, upon the authority of the following opinion.)