HENRY MILLER, Appellant, v. C. E. GRUNSKY, Respondent, 141 Cal. 441

BEATTY, C. J.— Plaintiff sues to quiet his title to the west twenty chains of

section 31 and of that part of

section 30 lying south of the San Joaquin River in a certain township in Merced County. Defendant disclaims as to the east six and a half chains of the premises described in the complaint, but asserts title to the remainder, so that the tract in dispute is the west thirteen and a half chains of

section 31, and of that part of

section 30 south of the river. The land is swamp and overflowed, and part- of the grant of the United States to the state of California. Bach of the parties claims under the state,—plaintiff under a patent issued in December, 1873, defendant under a certificate of purchase issued in 1887. If the land in dispute was conveyed by the patent, the plaintiff has the title; otherwise, it belongs to the defendant. The trial court found for the defendant and entered judgment accordingly.

Plaintiff appeals from the judgment upon the ground that the calls of the patent establish his title conclusively, and that the court erred in admitting over his objection incompetent evidence to explain, to vary, and to contradict the patent. The evidence so objected to consisted principally of the plats and field-notes of official surveys made by the county surveyor of Merced County as a basis for the issuance of the patent under which plaintiff claims. These plats and field-notes were introduced for the purpose of aiding the court in determining which of two conflicting calls in the patent should prevail.

The description in the patent, so far as material, reads as follows: “Survey No. 267 Swamp and Overflowed Lands, Merced County, township No. 7 south, range No. 10 east, Mount Diablo meridian: sections Nos. 19, 20, 28, 29, 30, 31, 32, and 33, portions of said sections, and more particularly described in field-notes of said survey, as follows: Beginning at the southeast corner of the southwest quarter of

section thirty-three (33) in township seven (7) south, range ten (10) east, Mt.

Diablo meridian, thence west 40.00 chs., thence north 20.00 chs., thence west 20.00 chs., thence north 40.00 chs., thence west 60.00 chs., thence south 20.00 chs., thence west 40.00 chs., thence south 20.00 chs., thence west 20.00 chs., thence south 20.00 chs., thence ivest 6.50 chs. to the Orestimba Ranch, thence N. 0 degrees 20 minutes, E. 126.50 chs., to the San Joaquin River.” The remaining calls, which meander the river eastwardly to a designated point, and thence south to the place of beginning, may for the present be disregarded.

A careful comparison of this description with the government township as defined by the public laws of the United States, of which we take judicial notice, will demonstrate the fact that it does not include in terms any portion of the west 13.50 chains of sections 30 and 31—the tract in controversy. It will be seen that it carries the southern boundary from the point of beginning, by various courses, to the southeast corner of the southwest quarter of the southwest quarter of

section 31, which, if the township is of the size prescribed by law, we know is just twenty chains east of the southwest corner of the

section and of the township. Prom this point it runs west only 6.50 chains (to the Orestimba Rancho), and thence north twenty minutes east 126.50 chains to the river. Now, as to the call for the Orestimba Rancho, which, it is contended by appellant, controls absolutely, and by an inflexible rule, all inconsistent calls (for courses, distances, and quantity), it is to be observed that we can know nothing, judicially, of its location. Looking to the patent alone, we would be bound to assume that a line or corner of the rancho is to be found at a point 6.50 chains west of the southwest corner of the southwest quarter of the southwest quarter of

section 31 (this point is hereinafter referred to as “the point noted”), for there is where the description in the patent places it, and it is quite consistent with every law and public record of which we can take judicial notice, that the northeast corner of the rancho may coincide with that point. This fact was thoroughly understood by plaintiff, and accordingly he did not in the trial court rest his case upon his patent alone. If he had done so, he must inevitably have been nonsuited.

To make any case at all it was necessary for him to introduce evidence aliunde the patent to show that the Orestimba Rancho had an existence, and that it was located more than 6.50 chains west of the point noted.

The evidence which he introduced for this purpose was a duly certified copy of the official plat of the United States survey of the township, upon the margin of which in the blank space west of the township line appear the words “Orestimba Rancho.” Conceding that this evidence was competent and sufficient to show that there was a tract known as the Orestimba Rancho, the eastern boundary of which coincided with the western boundary of sections 30 and 31, it did not prove such facts as of any earlier date than July 26, 1870, the date of the official approval of the plat, and this date it will be found is material.

Nor did this evidence show that the Orestimba Rancho—wherever located— was marked by any inclosure or visible monument whatever. In short, nothing was shown by this evidence except the naked fact that at the date of plaintiff’s patent there was a map of the township on file in the office of some federal official (the surveyor-general or registrar of the local land office), upon which the Orestimba Rancho was platted on the west of the township—i. e. 20 chains instead of 6.50 chains west of the point noted.

This map is not referred to in the patent, and there is no evidence or ground to presume that it was used or examined by any of our state officials concerned in the preparation and issuance of the patent.

Considering the character of this evidence offered by plaintiff for the purpose of locating the Orestimba Rancho twenty chains instead of 6.50 chains west of the point noted, thereby producing an ambiguity of description where none appeared before, and all for the purpose of controlling the terms of the patent, it seems singularly inconsistent for Mm now to contend that the court erred in admitting and considering evidence of the same character when introduced by the defendant, for the purpose of showing that on the maps actually used by our state officials, and referred to in the patent, the eastern boundary of the Orestimba Rancho was located where the call placed it,—i. e. 6.50 chains west of the point noted.

Before stating the particulars of the evidence which plaintiff contends was erroneously admitted over his objections, it may be well to call attention to the fact that the sale of state lands is regulated by statute. When plaintiff’s application to purchase was made, in October, 1868, the statute in force was

an act passed in April, 1868,—a general revision of previous acts regulating the sale of state lands. (Stats. 1867-1868, p. 507.) It contains detailed and minute regulations regarding applications to purchase, and all the steps leading up to the issuance of the patent.

For the sale of swamp land the process in brief was as follows: The applicant was required to file with the surveyor of the county where the land was situate an affidavit containing, among other things, a description of the land he desired to purchase, whereupon it became the duty of the surveyor to make and record (except when surveys had already been made) a survey of the land applied for, and to complete and forward to the surveyor-general duplicate copies of such “survey plat and field-notes” together with the application to purchase.

If the surveyor-general approved the survey, he issued to the applicant a certificate of Ms approval, upon presentation of which to the county treasurer, the purchase money (one dollar per acre) was accepted and receipted for.

Upon proof of payment the surveyor-general certified all the facts to the governor and secretary of state, who signed and sealed a patent containing, among other recitals, one to the effect that the “lands hereinafter described have been duly and properly surveyed in accordance with law.” This recital, in itself, would be sufficient to connect the description in the-patent with, the plat and field-notes constituting a part of the records of the county surveyor’s and surveyor-general’s offices; but it will be seen from that portion of the description above quoted from this patent, that it makes direct reference to ‘1 Survey No. 267, Swamp and Overflowed Lands.” This reference to the survey is necessarily a reference to the plat which is an essential part of it, and thereby the description contained in the patent is brought within the operation of subdivision 6 of

section 2077 of the Code of Civil Procedure, prescribing the rules for construing the description of lands.

That subdivision reads as follows:— “When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appear that the parties acted with reference to the map; o otherwise, the map is subordinate to other definite and ascertained particulars.” This rule, of course, applies to ambiguous descriptions,— descriptions requiring construction on account of false, conflicting or equivocal calls,—and is peculiarly applicable and absolutely controlling in this case.

For, as has been shown, the officers charged with the duty of preparing, executing, and issuing patents of this character—the surveyor-general, governor, and secretary of state—have nothing to guide them in describing the land except the field-notes and plat returned by the county surveyor, together with the application to purchase. They must necessarily refer to the plat in describing the tract conveyed, and in this case they have actually done so.

The plat, therefore, by the express terms of the code rule, “controls” other and inconsistent particulars in the description, and necessarily determines which of two inconsistent calls must give way whenever it confirms one of them and conflicts with the other. The court, therefore, did not err in admitting plaintiff’s application to purchase and the approved surveys referred to in the patent. Nor was it prejudicial error, if error at all, to admit the prior surveys, made for other parties, of these same lands.

Their certificates of purchase had been forfeited (presumably for non-payment) and Miller’s application was to purchase the lands formerly surveyed for them. The lands having been previously surveyed, the law did not require a resurvey in the field, and presumably the survey accompanying Miller’s application was compiled from the data in the surveyor’s office, consisting of the plats and field-notes of the former survey.

At all events, there is an exact correspondence between the earlier and later surveys and plats, so far as they affect the question before us, and if the survey made for Miller was properly admitted, the admission of the others did him no harm, unless he was injured by the additional light they threw on the origin of the mistaken call for the Orestimba Rancho.

These earlier surveys—of which the .survey for Miller was a mere recompilation—were made in 1865, five years before the government plat of the township was approved,—five years, that is to say, before the Orestimba Rancho was located west of the township line according to any evidence that had been introduced in the case at the time when they were offered. o They showed that at the time they were made the eastern boundary of the Orestimba Rancho was plainly marked by the posts and mounds of a government survey 6.50 chains west of the point noted, and it was so delineated on the plat of the survey.

This fact was subsequently explained by evidence that the rancho had been twice surveyed—once in 1859, and, upon the rejection of that survey, again in 1861. The latter survey—how long after its date does not appear—was finally patented, and then no doubt correctly marked on the township plat at some date prior to its approval in 1870. At the time of the state survey, however, the monuments first erected to mark the boundary of the rancho were still standing,—some of them, at least,—and this fact explains the call for the Orestimba Rancho at 6.50 chains west of the point noted.

The principle upon which the ruling admitting this evidence may be sustained is illustrated by the decision in Irving v. Cunningham, 58 Cal. 306. A deed contained a call for a line running two hundred varas to a Creek (arroyito). There was no creek upon the course of that l^e nearer than five hundred varas, and the contention was that the natural visible monument must prevail over the call for distance. But it appeared that there was a small gully, at about the distance of two hundred varas, in which water ran in rainy weather.

It was held that the grantor was more likely to have called this gully a creek than to have been so badly mistaken as to the distance, and the call for distance prevailed. So here it not only appears that the agents of the state might have been mistaken as to the boundary of the rancho, but that they were mistaken, and were led into their mistake by the visible monuments of a former boundary. Appellant would have us entirely disregard this natural and excusable mistake, with the consequence of more than trebling the call for distance, and also of violating other important calls of the patent.

For, if we extend his southern boundary to the township line, it results in increasing the length of the western line running to the river, changes the courses and distances of the meandering lines along the river from the northwest corner of the survey, and adds one hundred and seventy-one acres to the quantity of land contained in the survey, as returned and approved, and this one hundred and seventy-one acres is land which is sold by the acre, and which has never been paid for.

Further discussion of this point is perhaps unnecessary, for if the admission of survey 267 was not error,—as it clearly was not,—and if the plat constituting an essential part of that survey proves, as it does, that all parties to this patent understood that the Orestimba Rancho was only 6.50 chains west of the point noted, the admission of other evidence to show how they came to be mistaken, though it may have been superfluous, and even incompetent, could not possibly have been prejudicial.

The proposition advanced by appellant, that a patent issued by the state is conclusive as to all matters therein contained, and that extrinsic evidence is not admissible to impeach, vary, or even explain it, etc., if accepted to its full extent, would, as we have seen, put him out of court, for his patent not only does not include the land in controversy, but by a description which, read in connection with the law, is exact and definite and complete in itself, clearly excludes it.

But qualifying the proposition as it must be qualified, it may be said that the respondent does not controvert it, and we certainly do not question it. A patent is no doubt conclusive between the parties and their privies against any collateral attack, but before it concludes anything it must be construed and its meaning determined, and when it contains conflicting calls they are to be reconciled upon the same principles and by the same rules that govern the construction of other deeds of conveyance. This proposition is as vital to appellant’s contention as to that of the respondent.

The whole difference between them consists in the different rule .of construction for which they contend. Appellant claiming that the Orestimba Rancho, as platted on the township map, was, at the date of the patent, a monument, insists that the absolute and inflexible rule of law requires all conflicting calls for distance, etc., to give way to the call for the rancho. But this was never an absolute and inflexible rule.

On the* contrary, it has always been subject to exceptions and qualifications of various kinds, and the books are full of cases in which the call for visible monuments has been made to yield to other calls in order to carry out the true intention of the parties to conveyances of lands. And our statute (Code Civ. Proc., sec. 2077) has adopted the rule with all its exceptions and qualifications. It is true that, among other rules prescribed by this

section of the code, it is provided in subdivision 2 that when permanent and visible or ascertained boundaries or monuments are inconsistent with the measure-I ment, either of lines, angles, or surfaces, the boundaries or monuments are paramount; but this, like every other rule embraced in the section, is subject to the qualification contained in the first clause, that they control only when there arei no other sufficient circumstances to determine a doubtful construction, and it is further subject to the rule prescribed by the sixth subdivision, that a map referred to in the deed, and with reference to which the parties acted, controls other particulars.

In view of this statutory rule, it is hardly necessary to quote the decisions, but this court has more than once resorted to an accompanying map for the purpose of construing a deed. In Serrano v. Rawson, 47 Cal. 55, the court said: “In determining the location, the plat of the survey, which is a part of the patent, is often entitled to as much, and perhaps to more, weight than the courses and distances. (Vance v.

Fore, 24 Cal. 435.) In all cases of conflicting descriptions, the object of the court is to ascertain the intention of the parties, and the entire description contained in the instrument should be resorted to for the purpose of ascertaining the intention.” Numerous decisions here and elsewhere might be quoted to the same effect, but to do so would unnecessarily extend this opinion. Appellant cites a number of cases to the proposition that when a boundary-line is called for it means the true boundary of the tract, and not what the parties may have supposed the lines to be.

In every one of these cases the boundary-line was the only call; there was no conflicting call corresponding to what the parties supposed to be the true boundary; there was no survey, and no map or plat; no reference to any line marked by a fence or other visible monument. There was some other evidence admitted over appellant’s objection, but the rulings of the court were correct, except perhaps in admitting the alleged protest of appellant against the issuance of a certificate of purchase to the defendant. We do not see how that evidence could have been considered relevant, but it was certainly harmless.

The judgment is affirmed. Angellotti, J., and Lorigan, J., concurred.