Olsen v. Rogers

HARRISON, J. Ejectment to recover a lot of land in San Francisco, described in the complaint as lot number three hundred and eighteen, as delineated upon gift map No. 3. The court found the plaintiff to be the owner of the lot, and that its boundaries began on the west side of Chapultepec street, one hundred feet northerly from Virginia avenue, and running thence twenty-five feet northerly, with a uniform depth of seventy feet. Judgment was rendered in her favor, and the defendants have appealed. The plaintiff deraigned title to the lot through a deed made by Brown and Cobb November 26, 1861, conveying a lot described as in “Bernal rancho, city and county of San Francisco, and known upon gift map No. 3 as and by the number three hundred and eighteen, being twenty-five feet in width in front and rear, and seventy feet deep,” and the controversy between the parties is, whether a strip of land of about five feet in frontage in the possession of the defendants is a portion of this lot. The solution of this question depends upon the location of the southern boundary of lot three hundred and eighteen, as this forms the dividing line between the lands claimed by the respective parties. Upon this question, however, there was a direct conflict of evidence, and the decision of the trial court is not open for review. For the purpose of determining the location of this land a surveyor, Wilberg, called as a witness on behalf of the plaintiff, [227] testified that he had made a survey of lot three hundred and seventeen in this block, and, in connection with his testimony, the court received in evidence, against the objection of the defendants, the diagram of his survey of this lot. There was no error in this. The block of land which includes the lot in controversy is delineated upon gift map Ho. 3 as bounded by Virginia avenue on the south, Esmeralda avenue on the north, Prospect street on the west, and Chapultepec street on the east, and is divided into twenty subdivisions from north to south, extending from Prospect street to Chapultepec street, and each of these subdivisions is bisected by a line running from Virginia avenue to Esmeralda avenue, making forty subdivisions in the block. Lot three hundred and eighteen fronts on Chapultepec street, and is the fifth lot northerly from Virginia avenue. Lot three hundred and seventeen fronts on Prospect street, and lies directly in the rear of lot three hundred and eighteen, and within the extension of its north and south lines to Prospect street. The distance of lot three hundred and seventeen from Virginia avenue was, therefore, relevant for the purpose of determining the distance of lot three hundred and eighteen from the same street. For the same reason the court properly received in evidence the conveyance by Brown and Cobb of the four lots lying between lot three hundred and eighteen and Virginia avenue. These lots are delineated upon the map as three hundred and twenty, three hundred and twenty-two, three hundred and twenty-four and three hundred and twenty-six, and are described in the conveyance as being "each twenty-five feet in width in front and rear.” The description and reference to the map tended to show the dimensions of the several subdivisions of the block, and was also relevant for determining the distance of lot three hundred and eighteen from Virginia avenue. Gift map Ho. 3 was received in evidence without objection, and the subsequent motion of defendants to exclude it was properly denied. The deed to the plaintiff’s grantor referred to this map for the description, and not to a record of the map. It is not disputed that the map was made prior to the deed, and when offered in evidence it was conceded to be the genuine original map. (See Pettigrew v. Dobbelaar, 63 Cal. 396.) [228] The block books from the assessor’s office were irrelevant to any issue in the case. It was admitted that the original assessment-rolls show that lots three hundred and eighteen to three hundred and twenty-six, inclusive, have always been entered thereon simply by numbers and reference to gift map 3, without metes and bounds or specifications of frontage in feet or otherwise, and the defendants did not claim to have paid taxes on any other lots than those which were assessed as lots three hundred and twenty to three hundred and twenty-six, both inclusive. The judgment is affirmed. Garoutte, J., and Van Fleet, J., concurred.