Piercy v. Crandall

By the Court, Sawyer, J.: The plaintiffs’ deed describes the initial point in the boundary of the land conveyed as being “ at a point of the boundary of said r-ancho,” and as being “ the middle or center of the well known point called the Portezuela de las Animas.” As the boundaries of the said rancho have been finally surveyed and located, no point in said boundary coincides with the middle or center of the Portezuela, and the question is, where is the initial point? By taking a point in the middle of the Portezuela as the starting point, and running the other lines according to the calls, they will not close without abandoning the last call, and running a straight line to the point of beginning. Such a course would be adopted in a proper case. When there are conflicting descriptions, ordinarily that one must be adopted which is most certain and stable, and least likely to be mistaken or affected by errors, Upon this principle it is a 341 rule that monumental lines or points control such as are described by course and distance only. (Vance v. Fore, 24 Cal. 445-46.) These rules are adopted because they are most likely to lead to a discovery of the true intent of the parties. The Portezuela de las Animas is a natural monument, and the middle or center may be found at least proximately, while the boundary line of a Spanish rancho, which has not been finally located, is notoriously uncertain. The record does not show whether the boundary of the rancho had been finally located, or not, at the date of the deed, and the agreed statement of facts, which is stated to contain all the evidence upon which the Court acted, does not contain anything upon which the Court could have found. that fact one way or the other. It does not appear, therefore, whether the boundaries of the rancho were actually run out on the ground and finally located and marked before, or after, the making of the deed under which plaintiff claims. There is no diagram or other description in the record by which we can obtain a very accurate idea of the difference which the two theories as to the initial point will make, or the relative situation of the tract embraced in the description and that left out. If we understand the matter correctly, by establishing the initial point in the southern boundary opposite and nearest to the center of the Portezuela, as claimed by the defendants, and running the several courses and distances according to the calls, the lines will close at the point of beginning. While, by taking the initial point claimed by plaintiff, the lines will not close, and that a very narrow strip, several miles long, will be left between two ranchos, in a shape and condition not very likely to have been contemplated by the parties. The language of the deed is, “ commencing at a point of the boundary of said rancho, being the middle or center of the well known point called the Portezuela de las Animas,” etc. If, when the deed was made, the rancho had not been finally surveyed the parties might have supposed that the boundary and “ the middle or center of the Portezuela ” would coincide, and as the latter 342 was fixed and certainly known, while the former was not settled, the middle of the Portezuela would he the most certain and definite call. But if the rancho had been actually surveyed and finally located when the deed was made, the boundary might have been as definite, fixed and permanent an object, and as well known to the parties adopting it as a call, as the Portezuela. Since a point of the boundary cannot coincide with the middle or center of the Portezuela, and since all the remaining calls harmonize with the point in the boundary nearest the said middle or center of the Portezuela, and close the lines, while taking the middle or center of the Portezuela as the initial point, and running the other lines according to the calls, they will not harmonize or close the lines, we are unable to see any good reason why the point in the boundary should not be taken as the one intended, and especially so, if the other hypothesis would leave the land outside in such a shape or condition that it would be absurd to suppose such a result was contemplated. In such case the point in the boundary would be as definite and certain as the point in the middle of the Portezuela, and would correspond better with the other calls and with the probable intention of the parties, apparent from the surrounding circumstances. And the intention of the parties should be ascertained by a consideration of the entire description. For the reasons suggested we think it not advisable to finally determine the location of the initial point from the facts stated in the present record. A new trial should be had, that the facts may be more fully investigated. The point will, therefore, be left open, to be further illustrated by the facts brought out on the next trial. Judgment and order denying a new trial reversed and a new trial granted.