OLIVER IRWIN v. A. P. TOWNE and SAMUEL H. TOWNE, 42 Cal. 326

By the Court, Crockett, J.: The action was tried by the Court, and' no written findings were filed. Judgment was entered for the defendants, and the plaintiff appeals from an order denying his motion for a new trial. Both parties claim under a common source of title, the conveyance under which defendants deraign title being prior in time. Bach claims that his own'deed embraces the premises in controversy, and that the deed of his adversary does not. The defendants being in possession, it will be unnecessary to consider their title, unless it appears that the deed to the plaintiff includes the land in contest.

He cannot disturb their possession, unless he shows" the better title. The first descriptive call in the deed from Jacks and wife to the plaintiff is as follows: “ Commencing on a line at a point one hundred yards below the mouth of the creek, running from San Rafael to the Bay of San Francisco, on the easterly side of said creek; thence running at right angles to said creek to the highest ground on the ridge.” The defendants insist that a line commencing one hundred yards below the mouth of the creek, and to run at right angles with the creek, is incapable of being located with reasonable precision.

But there is nothing on the face of the deed to indicate that the creek does not run in a perfectly straight course, or that a straight line drawn along the thread of the stream would not intersect the beginning point of the contested line. In that event a perpendicular line drawn from this base would answer the call in the deed, which is, therefore, not void for uncertainty on its face, in respect to this line.

But the proof shows that the creek is exceedingly tortuous throughout its whole course from San Rafael to its mouth, and that, after an abrupt curve towards the north, it enters the bay nearly at a right angle. The tide ebbs and flows in it, and the land on either side is flat and marshy.' It further appears that the creek from San Rafael to its mouth is navigable by small craft for a portion of the distance, whilst above San Rafael the stream does not run in the dry season, but during the Winter is supplied by springs rising in the mountains several miles distant.

Below San Rafael the general course of the creek is nearly due east and west, whilst above the village the bed of the stream runs in a northwesterly course. The evidence tends to show that at the date of the deeds, under which the parties respectively claim, only that part of the stream which lies below the village was generally called and known as San Rafael Creek, whilst the same term was occasionally, though not generally, applied to that portion of the stream lying above the village.

These being the facts, it is our duty to ascertain, if practicable, what the parties to the deed meant by the phrase, “ thence running at right angles to said creek.” If we can ascertain the intention, by interpreting the deed in the light of the surrounding circumstances, it is our duty to give effect to it if possible.

It is obviously impracticable to run a line at right angles to a tortuous stream, except by first ’ establishing a straight line as a base for the right angle; and this can only be done by ascertaining, and reducing to a straight line, either the general course of the stream from its source to its mouth, or that portion of the stream which shall appear to have been within the contemplation of the parties at the time of the execution of the deed.

I am satisfied, from all the facts, that when these parties referred to the creek “running from San Rafael to the Bay of San Francisco,” they intended only that portion of the stream which lies below the village, and had no reference to the. stream above the village, which was not generally known or called by the same name, and which was, in fact, a running stream during only a portion of the year.

This inference is strengthened by the fact that the stream is referred to in the deed as “ the creek running from San Rafael to the Bay of San Francisco,” which tends strongly to show that this portion of the creek only was in the minds of the parties.

Assuming this to have been the fact, a straight line drawn from the head of the stream at San Rafael to its mouth would establish the general course of the creek; and this line, if protracted until a line drawn at right angles to it will pass through the beginning point of the survey, would establish the right angle called for in the deed, and determine the location of the first line of the survey. This method of locating a line called for in a deed is not free from objections, and is not to be commended in practice.

In some cases it would be impracticable, owing to the difficulty of ascertaining with precision the sources of the stream, or determining with accuracy its general course. But in this case no such difficulties will arise. The stream is short, running almost due east and west, and its head at San Rafael can be easily ascertained, whilst it empties into the bay through a narrow mouth which can be readily identified. I am, therefore, of the opinion that the base for the right angle, called for in the deed, can thus be established with reasonable.precision.

If the first line called for in the plaintiff’s deed be located by this method, it will include a portion, and perhaps the whole, of the land in controversy. The plaintiff is, therefore, entitled to recover, unless the premises in dispute are included within the deed from the common grantor, under which the defendants claim.

The first descriptive call in that deed commences at the same point called for in the plaintiff’s deed, to wit: “At a point about one hundred yards below the mouth of San Rafael Creek, and running thence northwesterly, or at right angles with the said creek, to a point on top of the main ridge.” The only variance between this call and that of the plaintiff’s deed, consists in the words “northwesterly or,” which are added to the description in the defendants’ deed.

But there is no visible monument called for at the end of this line, to fix its location, and the term “northwesterly,” employed in the deed, is less definite and certain than the call to run at right angles to the creek. It is true, that when the term “northerly,” “northwesterly,” “northeasterly,” etc., are employed to designate a line, if there be nothing else in the deed to fix its location, these terms will be construed as equivalent to a call to run due north, due northwest, or northeast, as the case may be.

But this construction is only resorted to to prevent a failure of the deed for a want of certainty in the location of the lines; and such a call must always yield to visible monuments, or to any other description of a line which locates it with reasonable certainty.

As we have already seen, a line running at right angles to the creek can be located with certainty and precision; and if it shall be found that a line running due northwest from the beginning point is variant from a line running at right angles to the general course of the creek, to be ascertained by the method already indicated, the latter must prevail, as the more certain of the two descriptions.

I am, therefore, of the opinion that a line running from the beginning point, at right angles to the general course of the creek from the Village of San Rafael to its mouth, to be determined in the manner above indicated, will be the proper dividing line between the lands of 'plaintiff and those of the defendants. Order denying a new trial reversed, and cause remanded for further proceedings, in accordance with this opinion.