^,^.6 '*•*■' ■•.'*~iT'"^'ijr.c»'.»l'5.'*fii2*?i"^«#-»'*^'*'*'! No In the Supreme Court OF THK STATE OF CALIFORNIA. ANDREW McNAMEE. Respondent, vs. DANIEL McCUSKER d al. AppeUanfs. s if tmsif Iff %% mttiii^ R S. BK0UK8, for Appellants. A. CRAIG, for Respondent. San Francisco : IVotnetis Unio?i Prun^ 424 Montgomery Street. 1874. Ffif f «• f f f f *Tlf «f f < ^ Cop. ± INDEX. FOLIO- Answer 9 Certificate of Clerk 220 Complaint 1 Judge's Statement and Order denying New Trial 11)5 Judgment 11 Notice of intention to move for New Trial 17-21 Notice of Appeal and Pi'oof of Service . . 209 Opinion of Judge, denying motion for New Trial 201 Order denying motion for New Trial. . . 195 Statement on motion for New Trial and on Appeal - 24 Deed D. McCusker to Munro Shattuck. . 93 " Munro Shattuck to J. E. AIcFarlin 98 " Munro Shattuck to D. McCusker. . IIG Deposition of G. II. Thompson 124 " Jas. T. Stratton 161 Motion for nonsuit 108 Patent to A. McNamee 27 " '' Rancho San Cayetano 33 11 INDEX. FOLIO. V 25 Smith's Survey, Exhibit A 27-32 Survey of Rancho San Cayetano 33 Stipulation as to testimony of S. TV Smith Testimony of J. E. McFarlin 34 u (i u chains to the division fence between C the lands belonging to A. McNamee and the heirs of L. P. Ciia})in, deceased; thence north- easterly and along said fence 4 {^q chains to the said southerly boundary line of said Rancho Bol- Ba de San Cayetano; thence norrh 67 west along said southerly boundary line of said Rancho Rol- sa de Sin Cayetano to the said post marked M 2, the place of bcginniug,c;)ntaining 10^^[ acres of land. And the plaintiff is lawfully entitled to the 7 possession of the said land and premises. That afterwards, to wit, on the 1 4th day of November, a. d. 1867, the defendants wrongfully entered into the possession of said premises, and ousted the plaintiff therefrom, and have ever since held, kept and detained the possession thereof from the said plaintiff, and now unlawfully hold possession of the same from the said plaintiff. That the rents au'l profits of the said premises, from the said 14th day of November, a. d. 1867, are of great value, to wit, of the value of five dollars per month, and plaintiff has suffered and still suffers damage by reason of the withholding possession of the said premises in the sum of one hundred dollars. Wherefore, the plaintiff prays judgment against the said defendant for the possession of the said land and premisas, and every part thereof, to the plaintilf, and for damages in the sum of one hun- dred dollars for the withholding the possession of the premises, together with all the costs of the action. Craig & Barham, g Plaintiff's Attorney. (Endorsed) Filed Feb. 24, 1869. [title of court and cause.] Answer. Come now Daniel McCusker and W. R. Fris- bie, defendants named in the above-entitled ac- tion, and for answer to the plaintiff's complaint 10 herein made and filed, deny each and every, all and singular, generally and specifically, the alle- gations therein contained, and say they areall untrue in fact. Wherefore, said defendants pray judgment, that they go hence with the costs and disbursements herein expended. Julius Lee, Attorney for said Defendants. Service of copy of the foregoing answer ac- cepted, and the same considered as filed in the proper Court within the proper time. ^^ March 24, 1869. Craig & Barham, Attorneys for Plaintiff. Filed March 25, 1869. [title of court and cause.] Judgment. This cause coming on to be heard in its regu- 12 lar order at the April Term of said Cour^", a. d. 1870, to wit, the 7th day of April, a. d. 1870, and the respective parties appearing by their at- torneys, the said cause was tried by the Court with- out a jury, and the Court having heard the evi- dence of the parties and the argument of coun- sel, the Court took said cause under advisement. And now at the October Term of said Court, a. d. 1870, to wit, on the 3d day of October, a.d. 1870, the Court bciiio; sufficiently advised in the prem- 13 iscs, rendered its judgment in favor of the plain- tiif and against ihe said def st boundary of the rancho, which diagram is marixcd '' Exhibit A," and is admitted in evidence, and is made a part hereof. It is also admitted respectively, that the survey by which said Smith ascertain3d the position of the section corners, was made subsequently to 27 the survey of which '' Exhibit A" is a plat. The plaintiff then offered in evidence the U. S. patent to Andrew McXamee, for the lots num- bered 6 and 7, section 31, in Township 12 south range 2 east, in the district of land subject to sale at San Francisco, California, comprising G2io„ acres, and dated Xovember 10th, 1S68. There being no objection it was admitted in " evidence. Plaintiff next offered in evidence the patent of 10 the Rancho San Cajetano, recor leil in Book " A" 28 of Linl Parents of the County of Monterey, on pages 74, 75, 76. 77, 78 and 79, together with the plat or diagram accompanying said patent, and being a part of the record thereof. Dated December 22d, 18iJ4, and made to Jose de Jesus Yallejo. There being no objection it was admitted in evidence. A copy of that part of the line in question, and of the field-notes thereof, is as foUows : Patent of the United States 2^ To Jose De Jesus Valli>j(), testamentary ex- ecutor of the late Don Ignacio V.illejo. dei;eased, dated February 14th, 18(35, to Rancho Bolsa de San Cayetano, bounded anil described as follows: Beginning at a })0!nt on the Pajaro river, recog- nized as the bound iry line between this Rancho and the Rancho Vega del Rio del Pajaro; thence (variation 15" 45' east) along the line of the said Rancho Vegi lei Rio del Pajaro S. 12° 30', E. 17.20 ch^.; thence S. 85" 15', W. 20.80 chs.. S. 58° 30', W. 27.22 chs.; thenceS. 8P, W. 2o.75clis.; then.-e 3^) N. 83" 45', W. 24.17 chs.; thence S. 57° 15'. W. 27.19 chs., S. 34" 15', W. 53.70 chs ; thence S. 10" 30', \y. 83.12 (dis.. to an oak tree 2^ ft. in diameter, marked 1> S, C 9, on tli-j edge of an estero ; the;icj m nx ideringal;)ngthe edgeof said estero in a g)neral southwesterly direction to a post marked 15 S 10, and sec. 4, in mound station at intersoclion with the third standard S.R. 2, east 31.00 chains, east of corner, to sections 4 and d; thence N. G7' west (at 21 1.20 chs inter- 11 sects lin(3 between ranges 1 and 2, T.12. S. 3' 3.70 31 chs., N. of corner to sec, 25, 30,31, and 30, at 225 chains descends into bottomland) 234.10, chs. to a post marked HS C 11, at the end of a funce in the bnik of the Pajaro River ; thence mean- dering up said river, in a general northeasterly direction, to the place of beginning, containing 8806 43 acres, and being designated upon tiie plats of the public surx^eys as lot No 30, in T. 12, S. R. 1 K., lot No. 10, in T. 12, Si. R. 1 E., and lot N"(). 40, in T. 12. S R. 2 E, Mount Diablo meridian. Recorded April 20t!i, a. d. 1805. ^9 ... riai tiff next offered in evidence a certified copy of the survey of the southwestern l)oundary (as surveyed by the U. S. Surveyor-General) of the Ranch of San Cayetano, dated March 9th 1809. There being no objection, it was admitted in evidence. See end of Transcript for map. Plaintiff also offered in evidence the diagram, marked " Exhibit A," which is hereto annexed, and made part thereof, g J See end of Transcript for map. James E. McFarhind, A witness called on behalf of plaintiff, being duly sworn, testified : I know the tract of land designated. These lots 6 and 7. section 31 Town. 12 south, range 2 east, are located south of Smith's line, be- tween McCusker's fence and Smith's line. I 12 mean by Smith's line the line of the San Ca- 34 3'etano Ranch. As I said before, the lard de- scribed in this patent runs up to the line as run by Smith. 1 don't know exactly what course Smith's line runs. I was present when Smith ran that line. The line which I refer to as marked on the diagram in evidence in red is the one as run by Smith, and the land in dispute lies between the line markeil in red and black. The black line on the diagram is intended to show Stratton's survey, and the red line on the diagram is the line as run by Smith. There was a fence on the black line, known a^ McCusker's fence. I don't know exactly when the fence was built; it was built before I came there. (Witness describes on the diagram the land described in the complaint as the tract of land embraced in the patent to McNamee, offered in evidence.) Lots 5 and G includes the Lm 1 lying be- tween Stratton's and t^mith's fence, and em- bracing 19^^ acres. McCusker was in possi^ssion of this land on the 23d of January, 1869. He j^g has been in possession since that time. He is now in i)ossession. McCusker rented it last year for $3 per acre. If I were going to rent the land I would not pay more than $2 per acre for it. That is all I consider the rental value of the land to be worth. The distance from Smith's line N. 67^ W. to^McCusker's fence, I do not remember. The width of it is something over 4 chains, 1 believe. I know where the line N. 67° W., or the Smith line, strikes the Pajaro river. I know where the 13 lower line, or Stratton's line, strikes the Pajaro. 37 The distance between these two points is six chains, I believe. I was present when Smith ran the line. Cross-Examination. I was present when Smith made the survey to ascertain the section corners. That was when he made his first survey. From the calls of the patent and Smith's sur- vey, I know lots 6 and 7, in Township 12, south. The calls of the patent are what it sets forth. 38 I know where lots 6 and 7 are from Smith's sur- vey. I know, because Smith's line runs north where that patent calls for. 1 know, because 1 am acquainted with the land and I was present when he ran the line. How do you know what lots are designated in U. S. Surveyor-GeneraFs Office, as lots 6 and 7 of that Township ? Answer. All I can judge from is Smith's survey. Smith was the County Surveyor of this County. The only knowledge I had is what Smith told 39 "^^• I cannot describe the boundaries of the lots, except by Smith's survey. I suppose they run up to the grant line. 1 have no knowledge or information on the subject except what Smith gave me. McCusker was in possession on the 16th Jay of January, 1869. Frisbie had the land rented then. He rented it. 14 I know that McCusker owned the lani, because 40 Frisbie told me so. M}' information on that subject is derived from Frisbie and others. McCusker was not himself occupying the land. I presumed McCusker to be in possession of it, because he owned the land, but Frisbie was in possession and cultivated it at the time of commencing this suit. I did not follow Smith in his survey. He started from " B. S. C. 10." Mr. Smith used the instrument. I did not use it. I only know from what he 41 told me as to the distance. I followed him over to the Pajaro river. The land is high table land there. We did not pass any streams or water courses — none. I waiked the whole distance — there was one little slough where you could not walk, it was some ten or fifteen chains from the Pajaro river — there w.is no place, from the time you reached the slough to that point, where you could not walk. I crossed some road — the land on the County road was fenced, the road which crossed that line near the middle of it. in When we approached the Pajaro river, we did not go through the slough. Smith made an offset, and went around it, north of the course. Between that and the river, the line passed over a point of land that ran down toward the low land; between this water and to the north of it the land rose to the level of the table land. I have been along the line of the Stratton survey, frequently, but not on any survey. T think Smith took the course of that line — he did not 44 15 chain it — that line is marked by a fence. There 43 is a continuous fence on that line, from its com- mencement to the river, exce[)t there is a place, of about one-quarter of a mile, where there is no fence. It was through a portion of McCusker's Goveinment land. That is, it is fenced on both sides, but does not cross his enclosed field. This fence was on the line when I crossed it. I do not know who put that fence there — there was a house there. It was near the river, where Stratton struck the river. It was not more than 12 yards from Stratton'sline, and about 50 yards from the river. And from the Shattuck house to the fence is about 12 or 15 yards. It looks to be a house that might be there some years — there were several other houses on the place. I don't know exactly the distance from the river to McCusker's first cross-fence. It is nearly half a mile from where the fence on the Stratton line strikes the cross-fence on McCusker's Govern- ment land. That cross-fence runs a little south of east, I believe. This cross-fence — pointing it out on the diagiam — runs north and south. It may run west of south. I could not tell exactly. 45 Counsel for the plaintiff here withdrew his consent to dismiss the suit as to Frisbie, it having been macle under a misapprehension. Counsel for defendant objected to the with- drawal. The Court overruled the objection and permitted it. Counsel for the defendants ex- cepted. Id Re-direct Examination. 46 I don't remember whether Smith had the patent before him or not, at the time he made liis survey. Was he not called upon by yourself and others to locate the land of McNamee, described in this patent, with reference to that line ? Question objected to by defendants. Objec- tion overruled, defendants excepted, and their exception was noted. Answer. Yes, sir. He was — I understand you, then, to say, that he did locate the land described in this patent. Did he or not do so ? Question objected to by defendants. Objec- tion overruled, and defendants excepted, and their exception was noted. Yes, he was requested to locate the lines of that patent in pursuance of that request. He found out the number of acres between the two lines, and ran that red line, and computed the number of acres lying between the red and black lines. .r. Edward McNamee, A witness called on behalf of plaintilr, being duly sworn, testified: I know the land described in the patent (By the Court.) Give us your de.^cription of lots five and six; give us their boundaries, as you understand them. Question objected to by defendants; objection overruled, and defendants excepted, and their exception was noted. 17 On the soutli side, is the lii^e where Smith ran 49 his line by the San Cayetano Ranch. The south line is the line between the land and McCusker's. 0.1 the east it is bounded by the Township line of Trimble. In January, 1809, McCusker had part of it, and my father had part of it. McCusker was in possession of the piece along the S.in Ca- yetano ranch, eighteen acres. I l)elieve tliat is the land described in the complaint, the part of which he was in possession, bounded by a line running north 07° west, on the south running 68J^ west, and on the east byMcCusker's to the fence. That was the land McCusker was in posses sion of. He was in possession of that in 1869 . No one else was in possession of it. He has been in possession of its'nce that time; he is in posses, sion of it now. lie rented it for three dollars per acre last 3'ear. I consider the rental value o it now one dollar ami a h:ilfan acre. Three dol. lars is more t!ian 1 would consent to pay for it. Cross-Examinaticn. I know which are lots five and six of sec. ion 51 thi'-ty-one, because I was with Smith when he surveyed the land. 1 have no knowledge on the subject except what Smith au'l all of them said. My fiither and all of 'em said that those were the lots. I don't know how^ many lots there are in section thirty-one. Lots one, two, three and four are down next the river. I am not certain. I mean the Tajaio River. I don't know what sections they were in. In section thirty-one, ac- cordimr to the United States survey, there ought r 18 to be four lots. Question. How c;ime two of o2 them to bo five and six? I expect two of iheni are corners. I don't think I can describe five an d six and tell their boundaries, by actual objects. 1 know their location from what I heard them say about them. I don't know whether I have or not seen a map of the United Spates survey of that Township. I was never in the United States Sur- veyor-General's Office. I have not seen a Town- ship map of that Township. Smith is a county officer. At the time of the commencement of the suit McCiisker claimed the land. I think he was cultiv^atin"; and cai-ryinff it on himself. I saw lots of men there at work. 1 did not see him at work, but I saw him around thire. Munro Sliattiick, A witness called on behalf of plaintiff, being duly sworn, testified: I lived at Watsonville 'nost of the time during the years 1857, 1858 and 1859. I was present part of the time when Terrell and his deputy, Cox, 54 made the sui'vey of the boundary line of the San Cayetano Ranch. 1 did not follow t!»em through. I know where they established the southern boumlary line of that ranch on the river. It was near the same point where it was afterwards es- tablished by the County Surveyor, Smith. Ter- rell marked the post where we stood. We stood on the bank of the river. I lived there ; I went there in the fall of 1857, and lived there until 18G7, or 18G8. Looking at the map 19 there was a fence wliicli run up and down the 55 Pajaro river, at a short distance above tlie Ter- rell lino, to a point on the river where the line was established by Stratton. At that point there was a fence: at the time that Stratton ran the line there was an old fence that ran from the house to the river. That fence does not stand there now ; it was not a regular fenc j all the way. 1 do not recollect how it was immediately at that line, but above that I know that I had some fencing to prevent stock from going on to the bank. In some places they could get through and in some places not, but whether it extended from that line I could not state positively. The course of t!ie line established by Stratton run just below my house to the river south. The fencL; of which I speak of ran over to my house, which is situated below the Stratton lir.e, between two and three rods from the Strattcv.i line, and from forty to sixty yards from the river. That was my yard fjn3L3 ; it was at right angles with the river, the old fence below my house. There was no fence running up and down the river below the Stratton line. From the Terrell line down 57 t!ie river there was no fence. Terrell established his line at Lhi uppjr corner of the garden I had, that, was fenced, tlio fence running up and down the river. He established that line at the upper end of that fence that ran up and down the river, or nearly so, I think. It ran a short distance, but the exact point of that fence I cannot state, as it was partly fenced by the bank. That was at or near the place where Smith's line strikes the river. It is about, I think, six chains from the stake 20 where Terrell established his line down to where 58 Strattoii's subsequently was at the time his stake was established. I understood that Terrell and his men wero making an official survey of the ranch when he established his stake. Being Cross-Examined By Mr. Brooks, he testified : The fence that led from my house to the river was a regular fence ; from that along the river there was a fence built of pickets. My memory is that there was a fence all the way, in some places of pickets and in others of slats — there was a ^•-^ continuous fence from the Stratton fence to a point above the Terrell line. I don't think there was any space between where there was no fence at all. Possibly there might have been where the bank of the river formed a fence. M}^ memory is, that I had it fenced all the way — my memory is, that there was some kind of a fence all the way. It was between two and three chains, going from the river on the Smith line, from the river bank, until you began to rise on the bank, then it rose something like twenty feet ; you don't continue QQ on the level, you pass over an abrupt point, and then you go over another hollow towards a lagoon The map at tlie place marked 26, in red ink, fairl}^ represents tht; configuration of the country, as far as I can see. There is a point as shown running down to the river after you pass over that — on the line you fall into such a depression of ground as shown on the map. It is some distance when you pass over it before you rise again, more than 4 chains before you rise to the 21 table land. Probably a little higher — then over 61 where the line crosses over the point. After that, you continue on the table laiid till you stiike the Slough, thence crossing, on iis course, the road between Watsonville and AFonterey, The Strat- ton line passes directly over bottom hmd for a few rods, and then ascends on the table land. The distance on the bottom is about 10 rods, more or less. It runs between two and three rods from my house. The line was right down by the old fence, running from my house to the river. I was present when Stratton set that corner stake. McCusker was present also. I did not, when Stratton established his corner stake, admit that it was within 2 or 3 feet of the corner established there at the regular survey made by Tenell, but in tlu preliininar}^ survey there had been a st.ike })hiced there, before the survey of the ranch was ordered. That w^as made by a siirvej'or employed l)y the owmers of the ranch. It was so made to establish the cor- ners when they made the application for their grant. There was an original post put there by this preliminary survey. I had a dispute with (3 him about his not having got the rig.it position. I did not state that 1 would have to own up or back down, or that I w^ould admit that he was within 2 or 3 feet of the corner post. I will tell you the conversation we had. What 1 said with regard to the two or three feet was this, the line of this old fence, that ran from my house to the river, in the prelin.inary survey, went to my posts that stood down on th ? bank of the river. 22 He would not hear anything said with regard to 64 the Terrell line, but proceeded to mark the stake on the bank, thai being on the line of th s fence, which run at right angles with the river ; their line running at an acute angle or triangle made his line some two or three feet out of the way. I told him that even if the corners had been as he said, that still he was robbing me of two or three feet of land. I p'lt up tliat fence on the Stratton line, immediately alter Stratton made his survey, i have forgotton the year ; I suppose it was after the decree of partition. I think it was laterthan in the fall of 1864. I put up the fence immediately after the survey was .made. It was intended for a boundary fence. It was mostly of posts and slats. I don't know whether it was a lawful fence, but it answered the pur[)Ose of fencing out stock. (To the Court) — t was about five feet high. I cultiva- ted land protected by th it fence. It protected stock. To make this fence I took down a por- tion of the fence that ran from my honse to the river. There may be sane posts remaining of that fence where it strikes thj river, forming part OG of the present d. vision fen ;e. I don't rem.^mber whether thera are more tha i that at that point. It is not on the same place where the old fence was ; it runs in a dilTerent direction, and the other fence runs at right angles j it does not strike the river at the same point the old fence did, because they got 5 or 6 feet more this way. There may be postir there next to the river. 1 have forirotten about it. 23 Re-direct Examination. 67 Did Terrell point out that as the (corner where he put his post ? Question objected to by defotidaiits ; objection overruled, and dei'eucLinis excL'pted and their excei)tion was noted. At the time that Terrell established the cor- ner, I did not see him do it. I went to town the morning before they left the ground, and on my return the}' pointed out to me wliere they bad established it. 1 think it was Terrell who pointed it out ; it was the surveying ^^ l)arty. Terrell's stake remained there till 18G2 , the 3''ear the river was very high, when the watei- washe'i stake and fence away. I think it was in 18G2 that it was carried awa3\ I saw the stake ever}' few days from the time it was es- taldished until it was washed away. There was no fence on the Pajaro river, running up and down the liver, below the line subsequently es- tablished by Stratton at the time Terrell made the survey. There was none below Stratton's corner. ^, Ue-CIIOSS FiXAMlNATrON. 1 built the fence between the two linos at dif- fiient times. I rebuilt it aft'U' it had been washed away in t'.ie wjitjr of 1862 — -1SG3. There was no fence there when I purchased the properly. I bought it from Kingsley King, in 185G or 1857, I think. I may be mistaken, but I think there was a fence running from my house to the river. I think tliere was a fence iicar 24 there. If there was a fence I rebuilt it. I ihink 70 there was some kind of a fence tliere, near the river, where I built the fence, 1 built mine of a diiFerent character, 1 think there was no fence u\) anil down the river. I went there along about the hrst of January, 1856 or 1S57. I guess it was 1856. 1 cannot tell how long it was after I went there when I put the fence there. 1 depended at first upon the fence that King built on the river, to prevent stock from getting in. That was a little above the Stratton line. I think the fence was lunning into the river a Utile above the house; the other '^ fence ran at right angles; the fence ran right down to the river. I cannot tell in what year I fenced it. That was never a very substantial fence, I put it there at different times. I don't know exactly the period I first put a fence there. It was probably in 1858, I occupied a piece of land that was taken in by the ranch a quarter of a mile above the fence, I occupied on both sides of the line. The object of the fence built along the bank of the i iver by King. I': ap- peared to me that King had a lot there that he 72 used for pasture, I used that pUice as a garden^ and my object was — I fenced it to keep stock out of tlic garden. I think that there was not a fence there in 1858. I did not remove it. In 1858 \ built a fence along the river, and en- closed it with 6, and north of the J section line running west through the middle of sec. 36, township 12 south, range 1 east, Mount Diablo meridian, being , about fifty-nine acres of land in both of the above 101 , ., , described tracts. Acknowledged March 4, 1864. Recorded March 9, 1864. To the introduction of this deed as evidence, plaintiff's attorney objected. Court overruled the objection, and plaintiff excepted. Being Cross-Examined By Mr. Craig, he testified. I think that fence, the fence specified in the deed, runs about east. 1 could not tell correctly the -course it takes. It was tliere 102 lor 15 or 16 years That is not the fence run- ning on tlie Stiatton line, but it goes to that line. It joins to the fence. The fence between, is nottlie lanch fence — it runs up to one side. I was opposed to the Stratton line. It was estab- lished about four years ago last winter. At that time I objected to it, because we understood that they had too much in the ranch. I did charge Stratton with running too far down. The Ter- 35 rell stake was washed out in 1863 or 18G4. I 103 saw it there, and I was there wlien it was planted at tlie Stratton corner. That is tlie only corner I know. I never saw any stake at tlie upper end. That is the Tcrixdl line, and the only line I know. I saw the Terrell stake in 1863. I saw it when I brought overproduce to ship; the boat was tied to that fence. I never saw the Terrell stake up to the Smith line; they say that Smith set it there. Shattuck built that fence up the river from Strat- ton line, as now surveyed, up to the Smith line 1 think it was after 1860. 1 think so. I cannot tell you whether I am as positive of that fact as I am of other facts to which 1 testified. I told you that stake was put there in 1860 or 1861, I think. 1 saw a stake there, marked. It was the only stake I saw there. Re-direct Examination. There were three surveys of the ranch. A'al- lejo had a survey made of it, jireliminarily, in 1855 or 1856. 1 knew this land at that time. The stake that I speak of is not the Terrell stake that stood there at that time. The stake that X05 stood there at the end of the fence was a private survey. It was a small stake, separate from the fence, driven in the gi'ound on purpose. It had some marks on it. It was right on the bank of the river. The hanks were low at that place, about three or four feet high. 1 suppose, in floods, the tides go up to it — to the stake set by Stratton, I think the water has been up to it at hio'h water. 36 Defendant next offered and read in evidence 106 the deposition of G. H. Thompson of San P^ran- cisco, which were in the words and figures follow- ing: [title of court and cause.] It is hereby mutually stipulated and agreed by and between the respective parties to the above- entitled action, that the testimony of G. H, Thompson be taken, on behalf of said defendants before John A. Barham, Esq., a Notary Public in and for the County of Santa Cruz, State of 107 California, at his office in Watsonville, in said County, at the hour of 3 o'clock, p. M.,on this 9th day of March, 1870. And that when said deposi- tion is so taken before said notary, in writing, upon interrogations by the respective paities and in their presence, the same may be read in evi- dence on the trial of said cause, subject to no other or further objection or exception whatever than its relevancy, competency or materiality, it being the true intent and meaning hereof to waive all technical objections and exceptions hereto, such as want of time and place, and no- tice of taking; and to agree that the same shall be subject to the objec'ions above stated, and no others. Craig k Barham, Plaintitl's Attorneys. Julius Lee, Attorney for Defendant. 37 100 [title of roriir and (wrsi-;.] l^e it reinembor('(l: Tliat piii-sinml to the stip- ulation lioruto iinuexcd and marked " A," and on tlie Dtli day of Marcli. a. d. 1 87(1, at niy ollice in the town of Watsonville, County ot Santa (.'ruz, and State of California, before me, .John A. Bai ham, a Notary Public in and for the s lid County of Santa Cruz, duly a[)i)oin!ed, commissioned and sworn, with due and leojal authority to administer oaths, kc, &c., personally api)eared C II. Thompson, a witness produced on behalf of the defendants in 11^ the above-entitled action, now pending in the said Court, who, being by me first duly sworn, was then and tliere examined and interrogated by Julius Lee, Esq., of counsel for said defendants, aiid by A. Craig, Ks(|.. of counsel for said ])]ain- tilf, and testilied as f(;llows: Question. What is \-our nime, age and place of residence ? Answer G. IT. Thompson, agi? thirty-four years, place of residence San Francisco. Q. What is your business or occupation, and 111 how long have you been engaged in it ? A. I am a siu'V-yor; b -en en^a^cd in that business for nearly thirteen years. Q. Do you know the J^olsa de San Cayetano Rancho, in Monterey County, and if so, how long have you known it, and under what circumstan- ces did you become acquainted with it? A, I have known the rancho l^olsa de San Cayetano since the spring of a. d. 1858. I lirst 2i) I U'^ became acquainted with it in assisting the mak- 112 ing the official survey thereof. Q. At what time was this survey made in which you assisted, and who was the Surveyor making the survey ? A. I think the survey was made in June, a. d. 1858, and James E. Terrell was the United States Deputy Surveyor. Mr. Terrell was not himself a practical surveyor, but he employed Mr. Clement Cox, a practical surveyor, to run the in- strument under his (Terrell's) direction. Q. State all who were present at the time of making the survey of said ranches? A. James E. Terrell, Clement Cox, a man named Z. Moore, a man named Perkins, myself and some others, whom 1 don't recollect. Q. Is 3'Our recollection distinct as to the manner in which the southwesterly boundary line of that ranclio must run at that time ? A. It is quite distinct. Q. Have you since been upon the premises to inspect them ? A. I have. I was thereto day. Q. Please describe how that southwesterly 114 boundary line was run, and where the corner on the bank of the Pnjaro river was established at that time by that survey? A. It was run through from the estero in several courses, and afterwards a straight course was calculated through, from the corner on the estero to the corner on the Pajaro river, which was in a small bottom, at the end of a fence. Tlie cornor was established by a marked post im- 11.") niediatidy on tlie bank of tlio river. Q. Wliat natural, or otlier ()])jects, did you pass, in running thatlin(^ toestal»lish that corner, and what distaixte from ihem did you pass? A. About thirty rods, before reaching the terminus of the line on the bank of the liver^ are descended from the table- land into the river bottom, and passed about tiiree or four rods to the east of a small house about half way between the table-land and the livcr. Q. When you examined the premises to-day, as you have stated, did you rocoo^nize the place ' where you estiblishod that corner on the bank of the river in making that survey? A. I did. Q. Describe now where that place is. with reference to any objects at present there. A. It is about at the same place where there is now the corner of a fence, and a marked i-ed-wood post, and the same house before referred to is still standing there. Q. How is the red-wood post you referred to marked ? A. I noticed some marks on it, but did n-it exaujine particularly what they were. Q. ]s the corner of the fence you speak of the same fence that was there when you made the survey? A. I do not know that it is the same fence, but think that it is Q. Do you know who placed the stake on the bank of the river which you saw to-day? 40 A. I tixed lines; and the fourth line, course Xo. 24, was run so as to include in the exterior bountlarics the quantity confirmed, and hence, I say, was necessarily established by calculation. Course ^4 was probably run at first, by Random, so as to calculate approximately the quantity, and 52 afterwards slightly changed, (by calculation, in 154 which an error was made,) so as to include the true quantity; that the true actual line was never run actually upon the ground is evident; from the fact, that there is no topography given along the line, except near its terminations, and had it been actually run, all the intermediate topog- ra])hy would have been given, and there is topog- raphy, such as fences, and roads, &c. There are undoubtedly half a dozen objects to which topographical reference wonld have been made. Had that line been actually run, there would have been a post placed at the intersection of this line with the range line; the rules of the office 'require that. I do not know, however, that there is no post there, but I found none there, and none is referred to in the field-notes of the patent. End of answer. There is a map made by me of this survey an- nexed to the report of the Commissioners in the partition referred to and on file in this Court in that case, the exterior boundaries of which exactly correspond with the exterior boundaries ^-n of the plat annexed to the patent. I marked the closing line, and afterwards a fence was built upon all that part of it, west of the road run- ning to the ferry. I marked station 25 by a good and substantial post, marked 11 S. C. 11, at the end of a fence on the bank of the Pajoro river, in the bottom lands. So much topography of the land as is on my said map laid down, is accurate and correct. Course No. 24 passes a few rods, say six or eight, 157 northerly of the house of Mv. Shattuck, neir the bank of the Pajaro river, who was present when I re-established the southwesterly corner of the rancho, wlio stated tliat 1 had located that cor- ner within two or three feet of where the ori- ginal post had stood, and which iiad been washed away by the river. Objection. PlaintilT here objects to so much of the answer above, as refers to or gives any state- ment of Mr. Shattuck, as ii-relevant nnd incom- petent, and to all such answer following here- after. ]Vitness. He at first contended that the, true corner was on the bluff bank which I have re- ferred to, about 6 or 8 chains north of the true corner ; but after I explained to him how I had determined the true location of the corner by meandering down the river, he replied that he would have to give it up, and that I had located the corner within two or three feet of where it fermerly stood. Objection. Renewed, same as last, to all since last objection. 158 159 Cross-Examination. The course and distiince of the closing line from B. S. C. 10, given in the patent, will not run to the point laid down for it in the patent, on the river. I made my survey in 1864. All traces of an old fence or a stake, as called for, might have been obliterated between 1858 and 18G4. The 54 old fence I found appeared to be 8 or 10 years 160 old. I found it at the point where I located the terminus of the closing line. I believe it to be the fence referred to. The patent line does not call for brush 3 cliains before reaching the river ; it does call for bottomland, at 9 chains, or there- abouts, or rather says, it descends into bottom land. At the time I made my survey, I do not remember of the defendant or any other person pointing out a stake and an old fence at the termination of the closing line, as claimed by the phintiflfs, and the course of which is X. 67° west, as described in the patent ; but some one did point a stake at that point, on the high bluff bank, but it had on it no marks to indicate that it was the one referred to in the patent. There w^as but one house near my line, near the liver, when I surveyed it. 1 know where the corner of sees. 25. 36, 34 and -')6 should be, but its stake had been removed when I made my survey. With reference to that corner, my line, wliich I denominate the true line, would run, I suppose, a chain or two south of it. I never connected with it. •j^g2 J^s. T. Stratton. Sworn to and subsciibed before me, this 1st day of April, 1870. J. H. Blood, Notary Public. I). McCusker being re-called, testified : I sliowed Mr. Thompson, Stratton and Smith ^ stakes, the stake I showed him represented to be 55 the stake at the end of the line, that was tlie end 163 of the Stratton line. I pointed out all the stakes around. Testimony in Rebuttal. M. Shattuck. Was recalled by plaintiff, and testified as fol- lows: I did not hear either McCusker or myself admit that was the line. I never did admit it. I admitted that there had been a stake there, but ■*-'^* I disputed that it had been put there by Terrell. I admitted that he had come within two or three feet of wliere it was, but that stake was put there before Ten-ell made his survey. It was put there at the preliminary survey. The termination of the upper line, where it strikes the river, runs over a narrow point, then crosses a narrow bottom, some- thing between one and two chains — less than two chains. Then there is a bottom between the river and that little rise. I tried to got Stratton to go up with me to show him where the corner j^gg was established by Terrell, but he refused to go. I then pointed out where the stake was. I told him that the stake, as established by Terrell, had been washed away, and that if he would come up with me, I would show him wliere it was situated, but he refused to do so. I do not recollect of call- ing McCusker's attention to the corner post, as I thought heknew it. That stake stood there some five years, until the winter of the high water, in 56 1861, or 1862 or 1863. It then went off, together 166 with some fencing. There was a small portion of the land also washed away. The stake only marked the line. It stood about four feet high. I think it was marked " B. S. C." Whether there was a num. ber on it or not I could not say. There was one house there and the remains of another in 1858. The house stood about five or six chains from the Smith line. McCusker stated that there was no fence built there until 18(')0 or 1861, from the Stratton line up to the Smith line. How was that? 167 Question objected toby defendant. Objection overruled and defendant excepted, and his excep- tion was noted. There was a fence running a good portion of the way. I built a portion of it in 1858, and a portion of it in 1859, and I might have built some of it later than that. There was no fence there at the end of the Smith line, or north 67° west of this ranch, when Stratton ran his line and established the west corner . There was a fence near that line that ran near bushes, some- where between three and four rods to where 168 Terrell's stake was. Being Cross-Examined J3y Mr. Brooks, he testified : I told Stratton that he had got too near to the corner post of the preliminary survey. I under- took to explain it to him. There was two pre- liminary surveys made there. The preliminary 57 survey in which the stake was placed was made 1(50 before Terrell's survey. This was all the testimony. Thereupon the cause, after argument, was sub- mitted to the Court, and, after due deliberation, the Judge ren lered his decision, and directed a judgment in favor of the plaintiff. And thereupon, within the time allowed by law for that purpose, the defendant gave notice of his intention to move for a new trial, stating therein, generally, the grounds of the motion, and he now files this his statement, within the time allowed by law for that purpose, and specifies the grounds of his motion: First. Eri-ors of law, occurring at the trial, and excepted to l)y the defendant. i. Allowing the cause to be reinstated, after the same had been voluntarily dismissed as to the defendant Frisbie. 2. Allowing witness to prove that Smith lo- cated the land on the patent of the plaintitl in reference to the boundary \'nv) of the Pajaro Rancho. 3. Allowing McNamee to describe and bound 171 lots ri and () from heaisay. 4. Allowing Shattuck to testify to what Terrell and others told him. 5. Allowing Peter McXamec to certify as to what Smith tohl him. and refusing to strike out his testimony. 6. Denying motion for nonsuit. 7. The conclusion of law, tliat tlie plaintiff 58 was entiiled to iiido-ment ao;ainst defendant 172 Frisbie. S. The conclusion of law, that the plaintiff was entitled to judgment against the defendant, McCuskei'. Second. And he specifies no particulars in which he alleges the evidence to be insufficient to justify tlie finding. 1. The evidence is insufficient to justify the finding that the true line of thi Rancho Bolsa de San Cayetano, as sui'veyed and located by the Surveyor-General of the United States for Ccili- -irrg fornia, was not as marked out by Stratton, but was as marked out by Smith. 2. The evidence is insufficient to justify the finding the post and station '" B. S. C. II," as lo- cated and established by the U. S. Deputy Sni'- veyor, Terrell, in the former sui'vey of the rancho, was at tlie point where the line run by Smith ter- minates at the I-*ajaro river, and not at the point where the line run by Slratton strikes the said river. Third. That the decision is against law. And inasmuch as tho matters aforesaid do not 1'^ appear by the record of said cause, the Hon. S. B. McKee, the Judge before whom said cause was tried, hath hereto, at the request of the defendant, set his liand and seal, in testimony that the sam& is a true, full and perfect statement, this Slst day of February, a. i). 1872. S.' B. McKee, District Judge. 59 [title of court and cause.] Slipulalion. It is stipulated and a<];reed that the map an- nexed to the patent of the llancho IJolsa de San Cayetmo form a part of the statement in these cases, and that a copy thereof shall be annexed to the statements and to the Transcript if an appeal be taken. That the motions for new trial be, and the same hereby are, submitted on the said statement and briefs to be filed, defend- ants to have 10 days to serve their brief, plain- tiffs 15 days to serve brief, and defendants to 196 have 10 days after receipt thereof to reply. The map, Exhibit "A," to form a part of the state- ment, and that a copy thereof be annexed to the Transcript, if an appeal be taken. B. S. Brooks, Attorney for Defendants. A. Craig, Attorney for Plaintiff. (Endorsed) Filed June 4th, 1872. 177 [title of court and cause.] Judge's Statement and Order Denying Motion for New Trial. - The history of this case is the same as that of McFarland vs, McCasker, just decided in this Court, and by stipulation of counsel, the testi- mony in one was made applicable to both. The defendant's motion for a new trial came 6.0 on to be heard upon the complaint and answer, 178 upon the statement and motion for a new trial, made and filed herein, and upon the deposition of one, J. T. Stratton, taken upon the part of de- fendant, by him used upon said trial, and now on file herein, and upon said record and full consideration thereof, the Court is of opinion, that the judgment heretofore rendered in said cause, in favor of pla'ntiff and against defendant, was, in all respects, correct, and that there was no error in the ruling of the Court upon the trial of said cause, or in the judgment rendered there- in. Wherefore it is ordered that said motion for a new trial, be and the same is hereby denied. San Jose, March 9th, 1874. D. Belden, District Judge. (Endorsed) Order denying motion for a new trial. Filed March 12, 1874. John Markley. Clerk. 180 [title of court and cause] xNotice of Appeal. Please take notice, that the defendant in the above cause hereby appeal to the Supreme Court of the State of California, from the judg- ment made and rendered in said causC; and also 61 from tlie order made, entered and filed in ^aid 181 cause, the 12tli day of March, a. u. 1874, denying said defendant's motion for a new trial, and iVoui the whole thereof. B. S. Brooks, Attorney for Defendants. To the Clerk of said Court, and to A. Craig, Esq., Plaintiir's Attorney, and Kliza McXamee. (Endorsed) Notice of Appeal. Filed April 18th, 1874. John Marklev, Clerk. 182 [title of court and cause.] Affidavit of Servicp of Notice of Appeai. State of ('alifornia, ) Montere}^ County, \ W. H. Webb, being first duly sworn, says : First. That he is a white male citizen of the United States, over twenty-one years of age, and competent to be a witness on the trial of the above-entitled cause. 183 Second. That alliant's ri'sidence and place of business is at Salinas City, in tiic Comity of Mon- terey, State of California. Third That heret .fore, to wit : on thelSih day of Apiil, a. d. 1874, he filed with the Ch'ik of the above-mentioned District Court, in which judgment iu said action is filed and I'utcred, a notice of appeal from said judgment ami from tlie order made, entered and filed in sai«i cause 62 on the 12th diiy of March, a. d. 1874, denying 184 defendant's motion for a new trial, a true copy of which said notice as aforesaid, marked Exhib- it '' A," is hereto attached and made a part hereof. And that, at the same time of filing said notice as aforesaid, he, affiant, served a true copy of said notice on A. Craig, Esq., who is tlie attorney of record of said plaintiff and respondent in said cause, by putting the said copy of said notice, enclosed in a sealed envelope, duly stamped and postage paid by United States postage stamps, and then and there depositing the same in the ^^^ United States Post-office at Salinas Citv, County 185 " ' "^ of Monterey, State of Califoi-nia, addressed as follows, to wit : ''A. Craig, Attorney at Law, Watsonville, Santa Cruz County, California." Fourth. That the said A. Craig, Esq., is the person on whom the service of said copy of said notice was to be made, and that he resides in a different phxce from the place in which resides affiant, to wit : in the town of Watsonville, in the County of Santa Cruz, State of California. Fifth. That there is a regular daily communi- cation by mail between the said places in which 186 said affiant resides, and the said place in which the said A. Craig, attorney, as aforesaid, resides. Sixth. And affiant further swears, tliat, at the same time of filing said notice as aforesaid, he, affiant, also served a true copy of said notice on one Eliza McNamee, by putting the said copy of said notice enclosed in a sealed envelope, duly stamped and postage paid by United States post- age stamps, and then and there deposited the 63 same in the United States Post-oflice, at Salinas 187 City, County of Monterey, State of California, addressed as follows : Eliza McNamee, Watson- ville, Santa Cruz County, California. Seventh. That the said Eliza McNamee resitles in a different place from the pla-^e in which afTi- ant resides, to wit : at or near the town of AVat- sonville, Santa Cruz County, State of California; that affiant is informed and verily believes, and upon such information and belief so states, that the said town of Watsonville, " Santa Cruz County, State of California," is the Post-office ,no address of the said Eliza McNamee. Eighth. That there is a regular daily commu- nication by mail between tlie said town of Wat- sonville, Santa Cruz County, State of California, and the said place in which affiant resides. W. H. Webb. Subscribed and sworn to before me, this the 18th day of April, a. d. 1874. John Markley, County Clerk. (Endorsed) Affidavit of service of notice of appeal. 189 Filed April 18th, 1874. John Markley, Clerk. [title of court and cause.] EXHIBIT "A." Copy of Notice of Appeal. Please take notice, that defendants in the above cause hereby appeal to the Supreme Court 64 of the State of California, from the judgment ^^^ made and rendered in said cause, and also from the order made, entered and filed in the said cause, the day of March, a. d. 1874, denying said defendant's motion for a new trial therein, and from the whole thereof. B. S. Brooks, - Attorney for Defendants. To the Clerk of said Court, and to A. Craig, Esq., Plaintiffs Attorney, and Eliza McNamee. (Endorsed) Notice of Appeal, Exhibit " A," (and attached to) affidavit of service of appeal. 191 Filed April 18th, 1874. John Markley, Clerk. State of California, County of Monterey, I, John Markley, County Clerk and ex-officio Clerk of the District Court of the Twentieth Ju- dicial District, in and for the County of Monterey, State aforesaid, do hereby certify the foregoing 192 printed Transcript on appeal to be correct, and that the papers and orders therein contained are true, full, and correct copies of the originals now on file and of record in said Court in said cause, and constitute all the papers and orders in said cause; and that said copies have been compared by mo with the said originals, and are correct transcripts thereof, and of the whole of said orig- inals. 65 And I hereby further certify, that undertakings 1^'i^ on appeal, in due form, conditioned according to the statute in such case provided, and in the penal amount fixed by order ol the Court herein, and for the payment of costs on appeal, were properly filed by said appellants within the statutory time in said cause. In witness whereof, I have heieunto set my hand, and affixed the seal of the District Court of the County of Monterey, this day of A. D. 1874. ''^ Clerk. 7 4^3 UNIVERSITY OF CALIFOr^NIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below UC Form L-0 ajm-1, '41(1122) UNIVERSITY OW CALLtV AT GSLES UBRARY ^S^pp 'ffTT Hif j^tf** *** *yj7Tr A 7 j^ ■pBMHK t v/ tl I II ''3 1158 00477 0607 J ■"- :r 'l^Ti