WAGNOR v. BLUME (1945)

This is an appeal from a judgment quieting plaintiff's title to a 10 foot strip of land 3000 feet long running parallel to and lying east of the Atchison, Topeka and Santa Fe Railway Company right of way in the city of Albany, county of Alameda. The real issue presented, upon which the question of title depends, is whether the right of way granted to the Santa Fe's predecessor in 1884 was 40 or 60 feet wide; and that issue has been twice previously litigated, first in a case involving two 10-foot strips along both sides of the right of way, and including the present land, MacGregor v. Knowlden, 102 Cal.App. 42, 282 P. 438, and again in a case involving part of the strip lying west of the right of way. Blume v. MacGregor, 64 Cal.App.2d 244, 148 P.2d 656. A reading of the decisions in those two cases will give a full comprehension of all the background facts of the present case, except for certain matters which will be hereinafter noted. In the first case, there were four parcels of land involved, No. 1, the strip north of Main Street (now Solano Avenue) and west of the right of way; No. 2, the strip north of Solano Avenue and east of the right of way; No. 3, the strip south of Solano Avenue and east of the right of way (part of which was again involved in Blume v. MacGregor); and No. 4, the strip south of Solano Avenue and east of the right of way, involved in the present case. In the first case it was held that the right of way was 40 feet, and the plaintiff MacGregor prevailed as to Parcels 1, 2 and 3 (with one exception not here involved); and as against MacGregor, the defendant Knowlden prevailed as to Parcel 4, this holding being based on the fact that MacGregor's title stopped on the west side of the right of way, and such holding is not determinative of the issues presented in the present case. In the second case the plaintiff therein relitigated the issues presented in the first case, and it was again held that the right of way was 40 feet wide. The same evidence was introduced in the present case, and for the third time it has been held that the right of way is 40 feet wide.

Both parties herein trace their title back to a common grantor, Sterling, and the dispute has its roots in the original grant of the right of way to the Santa Fe's predecessors. After the right of way was created, the land, excepting the right of way, without describing it except by acreage, was conveyed to Sterling, in two identical deeds. Sterling later conveyed the land to others, and in some of the deeds he excepted a right of way which he referred to as a 60-foot strip of land. From this discrepancy arose the litigation over the title to the property. Incidentally, the Santa Fe, owner of the right of way, agrees that it is 40 feet wide and is not a party to this action.

Tracing the two chains of title in more detail, and going back of the title of Sterling: in 1884 the Pacific Improvement Company, owner of two-thirds, and Maria Hall, owner of one-third (her interest later being acquired by H. W. Carpentier) made identical deeds conveying to the California and Nevada Railroad Company a right of way over lands of which the grantors were then the owners. Certain calls in the description were omitted from those two deeds, but in the two cases above cited it was determined that the right of way was fixed at 40 feet. In 1906 Pacific Improvement Company and Carpentier conveyed their interests to George Sterling in lands on both sides of the right of way previously granted, including the lands in dispute, and excepting 5.73 acres ‘for right of way to The California and Nevada Railroad Company Feb. 23, 1884.’ In 1906 Sterling and his wife conveyed by deed to the North Berkeley Land Company a 52.30 parcel of land which ran from Cordonices Creek (the southern boundary of the property in dispute) north to Main Street, under a description which read in part as follows: ‘Beginning at a point formed by the intersection of the center line of Cordonices Creek with the easterly line of the Right of Way of the Atchison, Topeka and Santa Fe Railway * * *’ and excepting therefrom a 300 foot strip ‘parallel to the right of way of the Atchison, Topeka and Santa Fe Railway * * *.’ In 1908 Sterling and his wife and the North Berkeley Land Company conveyed to the Realty Syndicate 25.67 acres, part of which had been included in the former deeds, and which also included the 300 foot strip which had been excepted from the former conveyance. The point of beginning in this deed is ‘the most southern corner of that certain 52.30 acre tract of land heretofore conveyed to the North Berkeley Land Company by George and Carrie R. Sterling.’

It is under this 1908 deed from Sterling to the Realty Syndicate that plaintiff deraigns her title. As will be noted, the point of beginning in the description in that deed is by reference the same as that in the North Berkeley Land Company deed quoted above; therefore the point of beginning in the description in the deed under which plaintiff deraigns her title is actually ‘a point formed by the intersection of the center line of Cordonices Creek with the easterly line of the Right of Way of the Atchison, Topeka and Santa Fe Railway.’ The remaining deeds in plaintiff's chain of title, according to plaintiff, all tie to the same western line of the 25.61 acre tract, which, in turn, is the eastern line of the right of way. The devolution of title from the 1908 deed is as follows: The Realty Syndicate conveyed a smaller parcel of 3.24 acres, including the strip in dispute, to San Francisco-Oakland Terminal Railways in 1914, which mortgaged the property to Mercantile Trust Co. in that year, and when this mortgage was foreclosed a certificate of sale was issued and later a deed to Messrs. Goodfellow, Olney and Brobeck, who in 1923 conveyed to Key System Transit Co. The latter conveyed the land to The Oakland Bank as trustee to secure a bond issue in 1923, and the lien created thereby was in turn foreclosed and a commissioner's certificate and then a deed were issued in 1931 to Railway Equipment and Realty Co. Ltd. The Key System Transit Co. also quitclaimed to the property to the Railway Equipment and Realty Co. in 1930. This company then conveyed the property described in the second cause of action to plaintiff herein, and the property in the first cause of action to National Service Co., which thereafter conveyed it to plaintiff.

Defendants' chain of title starts with a quitclaim deed executed in 1925 by Sterling to Bertha McKenzie Knowlden. The latter in 1930 conveyed to Bernice Kump, who in 1939 conveyed to N. A. Blume, one of the defendants herein. The other defendants are encumbrancers claiming under Blume. Thus, if Sterling's grant to plaintiff's predecessor extended to a 60 foot right of way, while the right of way owned by the Santa Fe was 40 feet, then Sterling retained possession of a 10 foot strip which passed to defendants in 1925 by the quitclaim deed.

The trial court found that plaintiff had proved title to the property involved in the present action; that Carpentier and Pacific Improvement Company and Sterling were, and each of them was, a common source of title under which plaintiff and defendants claim, and that they claimed from no other source; that prior to the deed from Sterling to Bertha McKenzie Knowlden, defendants' predecessor, Sterling had parted with all of his right, title and interest in and to said property, to the Realty Syndicate, and that by mesne conveyances from the latter the title now vests in plaintiff.

Defendants contend that there is no evidentiary support for the findings of ownership in plaintiff, or the other findings of the trial court; that ‘even a cursory examination of plaintiff's alleged ‘chain of title” will show missing links, and that plaintiff failed to meet the burden of proof. There is no merit in any of the contentions.

As already stated, the determinative question in the case is whether the Santa Fe right of way was 40 or 60 feet—if it was 40 feet, plaintiff of course prevails; if it was 60 feet, then Sterling retained title to the 10 feet in question, which would be included in the quitclaim deed to defendants' predecessor.

The evidence is amply sufficient to show that the right of way as originally granted, as shown by the railroad records, and as it presently exists on the ground, is 40 feet. The evidence in this regard is almost identical with that in the two former cases, wherein it was so held. The same two deeds creating the right of way in 1884 are involved here, that is, the deeds from Pacific Improvement Company and Maria Hall to California and Nevada Railroad Company. These deeds and pertinent maps were produced by Santa Fe officials, and all the Santa Fe maps and their original deed records show a right of way of 40 feet. And all the evidence shows that the right of way as it presently exists is in the same position as it was in 1906, and that it has not been moved. Further, the center line of the single track of the Santa Fe right of way was located on the ground, and the eastern boundary of the right of way was located 13 1/212 feet easterly of the center line. Therefore, once the right of way is located on the ground and its eastern boundary fixed, all descriptions which tied to that eastern boundary, either directly, or by reference, or through an omnibus clause, were likewise fixed and located.

Furthermore, plaintiff traced her title back to a common grantor, as set forth above. Defendants contend that there are missing links in this chain of title—one, that one of the deeds named as grantee the Mercantile Trust Company of San Francisco, whereas the next documents, a commissioner's certificate of sale and commissioner's deed, refer to the Mercantile Trust Company of California. This discrepancy was a matter for the determination of the trial court, and its implied finding thereon is controlling here. Defendants also contend that plaintiff failed to produce the judgment and execution needed to support the alleged commissioner's certificate of sale or the commissioner's deed; but these deeds were prima facie evidence of title. Sec. 1928, Code Civ.Proc.

Defendants also contend that the plaintiff failed to meet the burden of proof because there is no evidence to show that the property described in the quitclaim deeds (the last link in plaintiff's chain, by which she acquired title) was conveyed by any other deed in the chain. This question again depends on whether the right of way was 60 or 40 feet, and the determination that it was 40 feet ties it in with the other deeds.

Defendants further contend that plaintiff failed to prove a proper case for the ‘common grantor’ rule to apply, one point being that the trial court erred in finding that the parties claimed under a common source of title. The same point was made in Blume v. MacGregor, supra, and it was held that a plaintiff makes a prima facie case by evidence connecting the defendant with a common source of title and proving in himself a better title from that source; and that where both parties derive title from a common source the burden is placed upon the party having the inferior title from the common source, if he relies upon title from another independent source, to prove that the title acquired from the independent source is paramount to the title in the common source; the proof by one party of better title from a common source makes out a prima facie case for him, and the burden of establishing a superior title from some other source is then cast upon the other party.

Defendants also contend that plaintiff should have pleaded that she was going to rely on the rule of common grantor. Such would not appear to be necessary, as no authority has been cited so holding, and in Blume v. MacGregor, where the cross complainant relied upon the rule of common grantor, there was no such pleading.

Defendants also claim that because the North Berkeley Land Company is a party to one of the deeds, the rule of common grantor cannot be applied; but as plaintiff points out, the parties owned separate parcels of land, and apparently joined in giving a single deed simply for convenience. Under such circumstances no reason appears why plaintiff would be denied the application of the common grantor rule.

Defendants further contend that the rule of common grantor does not apply because there are several quitclaim deeds in the alleged chains of title. However, as plaintiff points out, although there is some authority for the statement that when the first deed out is a quitclaim, the rule should not apply, here the first deed out was a grant, and therefore the rule can be applied.

Also in this regard defendants seem to contend that plaintiff's failure to locate some of the exceptions in the deeds prevented the application of the common grantor rule. The record shows that during the trial counsel for defendants stipulated that plaintiff would not have to locate any exceptions other than the exception of the right of way. Defendants therefore are in no position to complain of the failure to locate any other exceptions.

Defendants claim that plaintiff is estopped under the provisions of section 1962, subdivision 2 of the Code of Civil Procedure, which provides as follows: ‘The following presumptions * * * are deemed conclusive: * * * 2. The truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title.’ The reason for this argument is that in certain deeds and maps the right of way is referred to as being 60 feet wide. However, as plaintiff states, the various parties to the written instruments to which defendants allude are not the parties here before the court. There are erroneous references to a 60 foot right of way in the various maps and instruments, but these cannot prevail over the actual located monument, the right of way itself.

Defendants also contend that the descriptions in the complaint, findings and judgment are so uncertain and ambiguous that the extent of the land adjudged to plaintiff cannot be ascertained. However, as held in Blume v. MacGregor, supra [64 Cal.App.2d 244, 148 P.2d 661], ‘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.’ Such was the case here; therefore there is no merit in the contention.

Various other contentions of lesser importance are made by defendants, but they do not call for any extended discussion. Suffice it to say that the points raised are either incidental to those already discussed and decided, or have been examined and found to be wholly without merit.

The judgment is affirmed.

KNIGHT, Justice.

PETERS, P. J., and WARD, J., concur.