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District Court of Appeal, First District, Division 2, California.



Civ. 12376.

Decided: December 28, 1943

Robert E. Knowlden, of Los Angeles, and Johnson & Harmon, of San Francisco, for appellant. McKee, Tasheira & Wahrhaftig and T. P. Wittschen, all of Oakland, for respondents.

Plaintiff and appellant commenced an action in ejectment against defendants and respondents. The description of the property involved in the complaint was adroitly drawn to cast doubt upon the defendants' title to a ten foot strip of land adjoining the right of way occupied by the Santa Fe Railway in the town of Albany in Alameda County, without making a frontal attack upon such title. This was done by alleging that plaintiff is the owner in fee of a parcel of land described so as to include all of said ten foot strip except a small portion thereof two one–hundredths of a foot wide and then excepting from this description any and every part of the property before described “which is described in the deed from Berkeley Development Company to C. M. MacGregor dated December 17, 1925”. The real claim of plaintiff, although not in express terms alleged in the complaint, was that the description in the 1925 deed from Berkeley Development Company to MacGregor was defective because it tied in by reference as its easterly boundary to a right of way for railroad purposes granted in 1884 by Pacific Improvement Company to California and Nevada Railroad Company; and that the description in the 1884 deed was so defective that it could not be located on the ground so as to complete the description in the deed to MacGregor. The description in this deed to MacGregor had been copied verbatim into the judgment quieting MacGregor's title to this ten foot strip, which judgment was affirmed in MacGregor v. Knowlden, 102 Cal.App. 42, 282 P. 438. (The ten foot strip involved in this action is a part of parcel 3 discussed by the court in MacGregor v. Knowlden, supra, 102 Cal.App. commencing at page 49, 282 P. at page 441.) The effect of the description as pleaded in the complaint was therefore to cast doubt by the same method of indirection upon the sufficiency of the judgment in MacGregor v. Knowlden, supra, actually to describe or quiet title to any property insofar as parcel 3 of said judgment is concerned.

Fourteen sets of defendants joined in a cross–complaint to quiet title to fourteen separate lots improved with residence buildings which they had severally purchased from MacGregor. In each count of this cross–complaint it was alleged that the lot claimed by the cross–complainant was improved with a dwelling house, that the rear ten feet of each lot was involved in the ejectment action and (by amendment allowed by the court) that a portion of each dwelling house was constructed on the ten foot strip and that each dwelling house occupies almost all of said lot including the ten foot strip as an integral part thereof.

This cross–complaint as amended was attacked by demurrer and motion to strike on the ground that the cross–complainants were not entitled by cross–complaint to quiet title to land not involved in the complaint. The court overruled the demurrer and denied the motion to strike. Appellant urges that this was error, relying on Pacific Palisades Ass'n v. Menninger, 219 Cal. 257, 26 P.2d 303, and similar cases, holding that the mere fact that the real property described in the complaint is a part of a larger tract claimed by a defendant does not authorize such defendant by cross–complaint to quiet title to the larger tract. We are satisfied that the allegations of this cross–complaint bring it well within the rule recently reiterated in People v. Buellton Development Co., 58 Cal.App.2d 178, at page 189, 136 P.2d 793, at page 799, in the following language: “But it is well established that in an action involving land as its subject matter, a cross–complaint affecting that land and also other land may properly be filed, where the cause of action set up therein affects such other land and that described in the complaint as a unit, or in such manner that one cannot be separated from the other without prejudice to the party filing the cross–complaint.” Cf. the cases cited in support of the quoted statement on pages 189 and 190 of 58 Cal.App.2d, on page 799 of 136 P.2d.

The issues raised by the cross–complaint, being equitable, were first tried by the court following settled practice. Thomson v. Thomson, 7 Cal.2d 671, 682, 62 P.2d 358, 117 A.L.R. 1. Appellant claims that the court erred in not signing findings and entering judgment on the cross–complaint before trying the legal issues raised by his complaint in ejectment. The court acted properly in deciding all the issues between the parties by one set of findings and one judgment. De Vally v. Kendall de Vally O. Co., Ltd., 220 Cal. 742, 745, 746, 32 P.2d 638; Stockton, etc., Works v. Glens Falls Ins. Co., 98 Cal. 557, 577, 33 P. 633.

The final judgment denied appellant any relief on his complaint and quieted cross–complainants' title to the several lots described in their cross–complaint. The issue as to the ten foot strip arose by reason of the fact that the description of the right of way conveyed by Pacific Improvement Company to California and Nevada Railroad Company in 1884 omitted certain courses and distances and if followed literally conveyed an irregular strip varying from approximately 14 feet at its narrowest part to over 80 feet at its widest, and would only close by drawing an arbitrary line from the end of the last course given to the point of beginning. The omission of certain courses and distances in this description may be graphically illustrated by the following table in which the northerly and southerly calls have been placed in parallel columns and dashes inserted where the southerly calls corresponding to certain northerly calls have been omitted:

The evidence shows that there is a railroad right of way on the ground 40 feet in width which has been continuously occupied by the Santa Fe Railway at least since 1905 or 1906, and that the Santa Fe Railway claims its title to such strip under the 1884 deed from Pacific Improvement Company to California and Nevada Railroad Company (as to an undivided two–thirds) and another deed of approximately the same date from Maria Hall to California and Nevada Railroad Company conveying an undivided one–third interest by the same description. It also appears that by taking the description in the 1884 deed and starting at a point in Cordonices Creek where the center of the right of way as actually occupied on the ground crosses said creek and tracing the courses and distances in the 1884 deed, supplying the missing southerly courses and distances by making them parallel to the corresponding courses and distances on the northerly course and of the same length, the line so traced follows substantially the boundaries of the present right of way as actually occupied by the Santa Fe on the ground. It further shows that the property conveyed by the 1884 deed was described as containing 5.73 acres and the strip so laid out contains 5.72 acres. Also by starting at the end and tracing the line backwards to the first omitted call, the calls so traced coincide with the line arrived at by supplying the missing calls.

The original monuments referred to in the 1884 deed were not found upon the ground and appellant claims that there is no evidence which would justify the court in finding that the right of way now actually occupied by the Santa Fe has any connection with the right of way conveyed to California and Nevada Railroad Company in 1884. In making this claim appellant overlooks the fact that a map with a letter attached which had been introduced into evidence in the trial of MacGregor v. Knowlden, supra, was by stipulation of appellant's counsel introduced on the trial of the present action. The map showed the present Santa Fe right of way and the letter, signed by R. B. Ball, chief engineer of the Santa Fe Railway, contained the following statement: “Our deed record shows we have a width of 40 feet, a two–thirds interest in which is covered by deed recorded in Book 282, page 223, Records of Alameda County, the original of which is filed as our secretary's number 3974, and an undivided one–third interest by deed recorded in Book 284, page 91 of said County filed as our Secretary's number 3975.”

The references to book and page correspond to the book and page at which the deeds from Pacific Improvement Company and Maria Hall to California and Nevada Railroad Company are respectively recorded. This letter, though hearsay, having been admitted by stipulation, is competent evidence that the Santa Fe traces its record title to the strip actually occupied through the California and Nevada Railroad Company to the two deeds referred to. Nelson v. Fernando Nelson & Sons, 5 Cal.2d 511, 518, 55 P.2d 859.

In this state of the evidence the following rules of law concur to support the finding of the trial court that the line of the 1884 deed referred to in the 1925 deed from Berkeley Development Company to MacGregor is the line of the present Santa Fe right of way as actually fenced and occupied: Such interpretation must be given to a deed as to make it effective rather than to defeat it. Hall v. Bartlett, 158 Cal. 638, 642, 112 P. 176; 9 Cal.Jur. 258, 259; Civ.Code, sec. 3541. A deed indefinite in terms may be made certain by the conduct of the parties acting under it. Pio Pico v. Coleman, 47 Cal. 65; Schmidt v. Klotz, 130 Cal. 223, 62 P. 470; California Packing Corp. v. Grove, 51 Cal.App. 253, 257, 258, 196 P. 891; 9 Cal.Jur. 303; 18 C.J. 262, 279; 26 C.J.S., Deeds, §§ 93, 100, pp. 346, 360. An omission of part of the boundaries or calls is not fatal to the validity of a deed, where such boundaries or calls can be supplied or the description rendered certain. 26 C.J.S., Deeds, § 30, p. 220; 18 C.J. 185; Fortenberry v. Cruse, Tex.Civ.App., 199 S.W. 523; Ray v. Pease, 95 Ga. 153, 22 S.E. 190; Cornett v. Creech, Ky., 100 S.W. 1188; Myers v. Hatler, 121 Or. 332, 254 P. 355; Grisham v. Tate, Tex.Civ.App., 35 S.W.2d 264; Thompson on Real Property, Perm.Ed., Vol. 6, sec. 3275, p. 446. If the description is indefinite, as by the omission of a line, then a statement of the quantity may help to locate the boundaries. 4 Cal.Jur. 404; 9 Cal.Jur. 314, 315. In order to determine what land was intended to be described in case of ambiguity the description may be read by reversing the courses. 9 C.J. 169; 11 C.J.S., Boundaries, § 9, p. 549; Walsh v. Hill, 38 Cal. 481, 486. In general if a competent surveyor can take the deed and locate the land on the ground from the description contained therein, with or without the aid of extrinsic evidence, the description will be held to be sufficient. Best v. Wohlford, 144 Cal. 733, 738, 78 P. 293; Thompson v. McKenna, 22 Cal.App. 129, 132, 133 P. 512.

Under these applicable rules of law the finding that the land conveyed by the 1884 deed was the same as the present right of way actually occupied on the ground is not only amply supported by the record, but it is at least doubtful if a contrary finding would find support therein.

Appellant relies on a negative pregnant in the answer to support his claim of title to the portion of the ten foot strip claimed by him. This claim is based upon the fact that respondents denied that plaintiff “is the owner in fee” of the property described in his complaint. The ephemeral character of this contention is disclosed when the allegation of the complaint is compared with the finding of the court. The allegation of the complaint expressly excluded from the property which appellant alleged that he owned in fee any land which is described in the 1925 deed from Berkeley Development Company to MacGregor. The court found that the ten foot strip in issue was described in the 1925 deed to MacGregor and hence was expressly excluded from the land claimed by appellant. The admission, implicit in the negative pregnant, is therefore that plaintiff is the owner, other than in fee, of the land described in his complaint expressly excluding therefrom by the allegation of the complaint itself any portion of the ten foot strip.

The evidence showed that the cross–complainants by tacit sufferance of the Santa Fe Railway raised some flowers and vegetables, and in some cases had some small greenhouses at the rear of their respective lots and inside of the railroad right of way. Appellant claims that the court erred in not giving him a judgment ejecting such respondents from the portions of the right of way so occupied. If we concede that this was error, as claimed, it was trifling and not prejudicial. The evidence clearly shows that the entire right of way has been continuously fenced and occupied for railroad purposes by the Santa Fe, not a party to the present action, for at least a period of over thirty–five years, and that the cross–complainants claim no right or title to any part thereof, but recognize that the use they are making of small portions thereof is subordinate to the rights of the Santa Fe and by its sufferance. Their casual occupancy makes them no more than implied licensees of the Santa Fe at most. So long as the Santa Fe's title is not attacked by suit against it appellant could gain no substantial rights by a judgment ejecting any of the respondents from any portion of the right of way and have suffered no prejudice in that respect which would justify a reversal.

The first course in the description of the right of way conveyed by the 1884 deed reads “north 70′ east twenty (20) feet up Cordonices Creek.” The closing course reads “north 70° east twenty (20) feet to the point of beginning.” A witness testified that it is not customary to write “70′”, but if 70′ was actually intended it would be written “1° 10′”. Without such evidence the court could take judicial notice that this is so. The trial court was justified in view of all the facts in treating “70′” as a patent clerical misprision for “70°” and construing the first course accordingly. 9 Cal.Jur. 301.

What has been said sufficiently disposes of the appeal insofar as the judgment determines the plaintiff's action in ejectment adversely to him. Other points urged must be considered in connection with that portion of the judgment which granted affirmative relief to cross–complainants on their cross–complaints by quieting their title to the respective lots occupied by them.

In attacking the judgment quieting title in cross–complainants, appellant relies on the settled rule that in a quiet title action a party must recover on the strength of his own title and may not rely on the weakness of his adversary's. In addition to their reliance upon a record title, which appellant argues with considerable force was not sufficiently established, cross–complainants also relied upon adverse possession under color of title for the prescriptive period and the trial court found that they had acquired title by adverse possession to their respective lots. If this finding is supported by the evidence it sufficiently supports the judgment, and appellant's attacks on the findings of good record title may be disregarded.

That cross–complainants and MacGregor were claiming under color of title was amply proved by the introduction of deeds to MacGregor covering a larger tract which included the lots in question, and of deeds from MacGregor to cross–complainants of the several lots claimed by them. Appellant's claim that as to the ten foot strip along the Santa Fe right of way there was no color of title because of the alleged defective description in the 1925 deed to MacGregor has already been disposed of. Payment of taxes on the property in question by MacGregor and cross–complainants for the prescriptive period was proved. Redemption of the land after allowing the taxes to become delinquent, proved in some instances, is equivalent to their original payment. Gray v. Walker, 157 Cal. 381, 386, 108 P. 278.

As to occupancy during the prescriptive period, the evidence showed that the lots here in question were part of a vacant block fronting on Masonic Avenue and that prior to the improvement and sale of said lots to the cross–complainants MacGregor had color of title to the entire block. Commencing at a time more than five years before the complaint in this action was filed MacGregor had loose dirt from time to time hauled to and dumped on the tract, which dirt was afterwards spread out to fill the low places on the tract and allowed to settle. This was done to prepare the block for the construction of residences thereon. Thereafter, within less than five years as to all but five lots, excavations for building foundations were made, the foundations laid, buildings constructed and the property sold by MacGregor to the respective cross–complainants and occupied by them. The distinction between the character of possession necessary to constitute adverse possession where the entry is under color of title and without color of title is fixed by code provision and well settled in law. Code Civ.Proc. secs. 323, 324, 325; 1 Cal.Jur. 580–583.

The preparation of the block for building by MacGregor at a time when MacGregor had color of title to the block as a whole, by dumping loose soil on portions thereof and filling in the low places so as to make the entire block level, was a sufficient occupancy to support a finding that it started the period of adverse possession running in his favor. The case in this respect is quite similar to Goodrich v. Mortimer, 44 Cal.App. 576, 186 P. 844. In that case under color of title furnished by a defective tax deed the purchaser entered on the lot, removed some sage brush from a portion thereof and hauled some bricks to the lot preparatory to constructing a building thereon. The plan to construct the building was abandoned and some of the bricks piled thereon were later removed. The court said, at page 580 of 44 Cal.App., at page 845 of 186 P.: “Mrs. Rutledge always claimed to own as good title to the property as could be secured by a tax deed. It was purchased by her as a site for buildings to be erected thereon, which was undoubtedly the ordinary and eventual use to which the lot would be put. Her entry thereon was in good faith and for the purpose of carrying out her building plans. Her abandonment of her intention in that regard did not have the result of destroying her possession of and claim to the property, which was asserted in the manner before recited. Montgomery & Mullen Lumber Co. v. Quimby, 164 Cal. 250–253, 128 P. 402. To constitute actual possession, the inclosure of the lot by a fence or other structure was not necessary; the entry being under color of title. Hicks v. Coleman, 25 Cal. 122, 133, 85 Am.Dec. 103.”

The facts in the case before us are more favorable to cross–complainants, since MacGregor, after dumping and spreading the soil on the block preparatory to building thereon, did not abandon his intention to build, but instead proceeded to carry it out. The filling of the land was but the first step in a continuous occupancy which by progressive steps with no undue delay culminated in the construction and occupation of the dwelling houses thereon.

The descriptions in certain of the deeds from MacGregor to some of the cross–complainants commenced on the “westerly” line of Masonic Avenue. This was a clerical error obvious on their face from the consideration of the rest of the descriptions which necessarily showed that “westerly” should be read “easterly”. The trial court properly so concluded. 9 Cal.Jur. 301.

It is unnecessary to consider other points argued by appellant, since they could not affect the validity of the judgment in view of the conclusions above set forth. A great part of the briefs concern themselves with the propriety of the trial court's action in admitting into evidence the judgment in MacGregor v. Knowlden, supra, and the opinion of this court in the same case. Since we have concluded that the judgment in this case is amply supported without reference to MacGregor v. Knowlden, the error, if any, in admitting such evidence was not prejudicial.

The judgment is affirmed.

DOOLING, Justice pro tem.

NOURSE, P. J., and SPENCE, J., concur.