248
FEDERAL REPORTER.
HUGHES fl. CAWTlIORN. (01,'rcuu Oourt, 8. D. Oalifornia.
January 9,1888.:
BOUND A.n 1Es.:-MONUMENTS-CoURSES AND DISTANCES.
Where there are wclJ-estubl.shed monuments of a boundary, and the line run from the point of beginning by courses and distances does not COD form to one of the natural calis, whereas by starting from the other point all the natural calls are answered. the firb( course and distance from the point of beginning must give way, espeCially when by following it the line is taken out in an open valley w....ere there is DO apparent reason for its frequent chanl!cs of course, but taken tae otborway it runs along the base of mountains, WhlCh render such cl:anges necessarv. 1 .
Ejectment to recover designated lots of land situated in Los Angeles e<;>unty, Cal. Plaintiff relied upon the land being found to be within the boundares of the Tujunga rancho; and defendant resisted plaintiff's elaim on the theory that the land was public land ot Lhe United States, lying norta of the northerly line of the rancho, according to the courses and distancesgi.ven in the patent thereto. Wells, Van Dyke & Lee, for plaintiff. Williams··& McKinley, for defendant.
At Law.
J. There is but a single question in this case, and that relates to the boundaries of the Rancho Tujunga, a Mexican grant, confirmed and patented by the government of the United States. At the trial it was conceded by the respective partie::! that if the land in controversy is to the south of the northerly line oj the rancho, the plaintiff is entitled to recoverj otherwise not. There is no dispute in respect to the starting point of the Tujunga, which is also the third station of the adjoining Rancho Ex-Mission of San Fernando, and is situated at the mouth of a canada on the south base of the San Fernando mountains. From this point of beginning, the line, to the patent, runs along the base of the San Fernaodo mounta:ns a given couri;le and distance to 8 stake station; thence a certain other course. and d:stance to a stake station; Llence a certain other course and distance t,) a stake station; thence a certain other course and distance to a stake station j thence a certain other course and distance to a stake station; thence a certain other course and distance to Ii stake station 011 the south base of a mountain, which point, it is declared, the Tujunga valley, bearing east and west, is about 50 chainswidej thence a certain other course and distance to a stake station; thence a certain other course and distance to "a sycamore six inches in diameter, marked 'T 8 station;'" thence" south 11 0 45' east, eleven chains, to Tujunga creek, 20 links wide, course west, thirtythree chains to a stake station;" thence "south 47 0 30' east, at seven chains, across a dry arroyo, 30 links wide, course west, thirty-seven lTba1i monuments govern courses and distances, see Beaubien v. Kellogg, (Mich.) 37 N. w. Rep. 691, and note.
HUGHES V. CAWTHORN.
249
chains, to a stake station;" thence "south 22 0 east ninety-six chains to a stake station;" thence "south 80 0 east, ninety-six chains, to a gray granite rock, eighteen inches long, twelve inches wide, and ten inches thick, station, on the south-west slope of a high mountain;" thence. etc. That there is a mistake somewhere in this description is admitted on both aides. If, commencing at the starting point, the line be run according to the courses and distances given, it will not follow the base of the San Fernando mountains, as in the patent it is declared to do, but so far deflects into the valley as that, when station 6 is reached, it is fixed at a point, not, as declared }n the patent, on the south base of a mountain, but 18 chains therefrom in the valley, and within 100 feet of the Tujunga creek, and opposite which point the Tujunga valley, bearing east and west, is not, as stated in the patent, about 50 chains wide, but 35 chains only. Still following the courses and distances given in the patent, the line between stations 6 and 7 continues in the valley, crossing to the south of the creek, and between stations 7 and 8 crosses the same creek twice. As shown on the plat of the rancho annexed to the patent, and forming part of it, the line from station 6 to station 8 follows the mountains, and does not cross or touch the creek at all. In running from station 8 to station 9 the line, accordinl{ to the description given in the patent, at 11 chains crosses the Tujunga creek course west, 20 links wide; and in running from station 9 to station 10, at seven chains crosses a dry arroyo 30 links wide; and the plat annexed to the patent so represents it. Continuing the courses and distances as given in the patent to station 12, that point is found, not as declared in the patent, on the south-west slope of a high mountain at a gray granite rock, but far out in the valley, about 18 chains, from a gray granite rock, which, according to the testimony in the case, is found on the south-west slope of a mountain, and which is one of the boundaries of the adjoining Rancho La Canada, and a point from which the adjacent government land was surveyed. Of the rock in question Lecouvreur, the surveyor who made the survey of the Rancho La Canada about the year 1873, said at the trial: "It was a very conspicuous rock, and it was naturally such as a surveyor would take as a boundary mark, becallse there were no large rocks to be seen there anywhere." The evidence shows that this rock has for many years been recognized by the people in the neighborhood as a common point in the boundaries of the Ranchos Tujunga and La Canada; and that it was so recognized by the government surveyors in making the survey of the government land in the vicinity, is beyond dispute. Norway, the United States deputy-surveyor who marle the survey of the government land, testified on the trial of this case to the effect that, when he did so, which was a number of years ago, he ran from the gray granite rock in question back to station 11 of the Tujunga, and there found the old monument, and thus satisfied himself of the true location of the rock. But what to my mind conclusively establishes that the gray granite rock referred to in the evidence is the gray granite rock described in the patent, and at which station 12 of the Tujunga is thereby fixed, is that, by accepting that as station 12, and reversing the courses and distances, the line so
250
run answers all of the, natural calls of the patent, and conforms ,to the platoHhe SUl'Vey therein is true that at 11 chains to the station 8 as creek is not now found, nor is there now at that station a sycamore tree; but the evidence shows that the Tujunga creek is a changeable stream, dischargiug in the rainy season tremendous volumes of water; and while it is, along the ea'5terly line of the rancho; confined by the hills to somewhat narrow limits, yet, within those limits, it, like mllony other California streams that serve as an outlet for a large water-shed, often shifts. The stream of this year, not, the stream of next. In t,ra therefore, may not be, and ing, by the reversed courses and distances given in the patent, between is now a narrow alfalfa patch, stations 9 and 8, the line strikes which is just 11 chains south-east of station 8 as located by such reversed courses and distances, and which is lower than the present bed of the stream, and within the limits of the Tujunga canyon as defined by the hills. I am satisfied that this alfalfa patch was the bed of the Tujunga creek at the time of the government survey of the rancho. At station 8, as thus located, there is now no sycamore, but the evidence shows that it is located in one of n number of small canyons northerly from the Tujunga canyon, in some of which, similar in all respects to that in which station 8is thus located, sycamore trees are now standing and growing, and in some of which stumps of others that have been cut down are still standing. And two witnesses, whose veracity there is no reason to doubt, testified that during the tdal of this case they went into the canyon in which by the reversed courses and distances from the gray graniterock station 8 is located, and about 100 yards below the point found some small limbs and branohes of syoamore, some of which were partly imbedded in sand. They testified Jurther that the limbs and brl1nches did not have the appearance of having been put in position for a purpose. As it is 'a matter of common knowledge as well as one of evidence in the present case, that the cutting of wood in the mountains and canyons hereabouts is not unoommon, it is not unreasonable to conclude, if other circumstances sufficiently combine to locate station 8 in the canyon in question, that the sycamore called for in the patent at that station was subsequently cut down, and that the sycamore branches above referred to came from it. Continuing the reversed courses and distances from station 8, the line runs along the base of the mountains, as represented on the plat annexed to the patent, to station 6, which, as thus located, answers the calls of the patent almost exactly. Most of the witnesses who testified on the point testified, and a photograph of the premises 1ntroduced in evidence shows clearly, that section as thus located, is stor near the base of a prominent mountain, which runs out from the range of mountains. While it is true that the base of a mountain is an indefinite call, yet, at the point now in question, there is a very narrow slope to the south-in width about' 300 feet-between the mountain itself and a somewhat precipitous bluff., and opposite the point on this slope, where the reversed courses and distances locate station 6, the Tujunga valley, bearing east and west, is just 53 chains wide. I think,
e,
HUGHES fl. CAWTHOnN.
25'1
therefore, that station 6, as thus located, well answers the call of the patent, which declares it to be "on the south baM of a mountain, opposite which point the Tujunga valley, bearing east and west, is about 50 chains wide." Still following the reversed courses and distances, the line runs along the base of the San Fernando mountains to station 1. If, however, from station 1 the line be run in accordance with the coUrse and distance given in the patent, it is found to terminate a number of chains to the north of the acknowledged point of beginning. But as that is a well-known and admitted point in the boundary, and as the gray granite rock is another point therein well, and, I think, thoroughly, established; and as the line run from the point of beginning in accordauce with the courses and distances given does not conform to a single one of the natural calls, whereas, by going to the gray granite rock and reversing the courses and distances given, all of the natural calls are answered, the conclusion, I think, is clear that the mistake is in the first as the point of beginning is a known and concourse and distance. ceded point, and station 1 is fix.ed by the reversed courses and distances from the granite rock, agreeing as they do with the natural calls, the course and distance between station 1 arid the point of beginning must give .Way,· and the line be closed by a straight line drawn between the two ascertained and known points. The fact that the mistake is in the first course and distance is further shown by the circumstance that, commencing at the point of beginning and following the course and distance given, the line does not, as the patent declares it does, run along the base of the San Fernando mountains, but runs into the open valley the distance given, and then, still in the open valley, a number of other and varying courses and distaIices, without any apparent reason for the frequent changes of course, resulting in locating station 6, not, as stated in the patent, on the south base of a mountain, but in the valley, and at a point opposite which the Tujunga valley is not, as declared in the patent, about 50 chains wide, but 35 chains only; whereas, by following the base of the mountains, as declared in the patent, the reason for the changes of course are obvious,-being caused by the meandering of the mountains,-and station 6 is so located as to answer almost exactly the patent call. The location of the ranch-house in the field-notes is only with respect to the west. line of the rancho, concerning which no dispute arises. My conclusion is that the land in controversy is within the true lines of the Tujunga patent, and, as a consequence, that plaintiff is entitled to judgment. It is so ordered.
i52
HOFFMAN ". SUPREME COUNCIL OF AMERICAN LEGION OF HONOR.
(Oircuit Oourt, E.
n. V"wgima, E. n.
May 4, 1888.)
1.
INsURANCE-MuTUAL BENEFl'r SOCIETIEs-ApPLICATION-FALSITY OF REPRE· SENTATIONS-INSTRUCTION.
In an actiOn by the beneficiary to recover the premium of a life insurance polic;v: containing a clause to the effect that the policy was issued upon the condition that all the statements made by the applicant in his application for membership and in answer to the interrogatories of the medical examiner were strictly true. and, if untrue. the policy was to be void, an instruction, in substance that if the statements m/lde by deceased concerning his health, as shown by the application and answers to such interrogatories, were" essentially untrue," they should find for defendant, is proper; the word "essentially" being synonymous with "strictly." in such case. 1 The defendant society having. through its duly appointed officers, after de· ceased had been suspended for delinquency in his assessments, continued to make calls upon him for subsequent dues. and to receive the amounts called for, and the local council having, upon full hearing of deceased's application for reinstatement, although not actJDL in all respects in conformity with the rules of the institution, granted such application, held, that it was estopped from denying that deceased was a member in good standing.
I.
SAME-DEFAULT-REINSTATEMENT-Es'l'OPPEL.
8.
SAME-REINSTATEMENT-EsTOPPEL TO QUESTION APPLICATION.
4.
The reinstatement having been opposed by the officers of defendant on the ground that the statements in the original application and answers to interrogatories were false and fraudulent, and the reinstatement having been granted, and dues received, with full knowledg-e of the untruthfulness of such statements, (if untrue,) the defendant society will be deemed to have waived the benefit of the condition of forfeiture in said policy.
SAME-ACTION ON POLICy-EvIDENCE-VERDICT-WEIGHT AND SUFFICIENCY.
Upon the issue of the falsity of the. atatements of deceased concerning his health, which were to the effect that he was in good health, able to gain a livelihood, .had no disease, knew of no facts in his personal or family history tending to shorten his life, never had a severe illness nor injury, rheumatism. dropsy, palpitation of the heart, etc., it was shown by defendant that deceased had. a period including the date of such application,written letters and made apphcatiqn to another society representing his bad health. asking and receiving benefits by reason of permanent disability; that he had aband9ned his trade of blacksmith, and taken easier employment for that reason. Oer· tificates of physicians accompanied such .application for relief, showing heart and other diseases. Proof was made that during the same season deceased went· to the springs for his health, with other strong testimony of the same character. On the other hand was t'1e testimony of his wife, the beneficiary in the polky, that he was in gooq health; the testimony of the physician who made the examination for the company officially; and the fact that he was recommended by a member of the society who had 16ngknown him and his physical condition, with some other testimony of a corroborative character. Reid, that a verdict for the plaintiff should not be set aside, there being evi· dence to support it, and it being the province of the jury to weigh conflicting evidence. 1
At Law On motion for new trial. Action by Emma P. Hoffman, widow of John E. Hoffman, deceased, against the Supreme Council of the American Legion of Honor, upon a I Respecting false representatlvns as to uealth and habits in applications for life insurance, as the policy, see the note to Daveyv. Insurance Co., 20 Fed. Rep. 482; Goucher v. TravellIng Men's Ass'n, 20 Fed. Rep. 596, and note. See, also, the note to Chrisman v. Insurance Co., (Or.) 18 Pac. Rep. 466. For a reversal of the decision of the circuit court in Davey v.Insurance Co., 20 Fed. Rep. 482, see Insurance Co. v. Davey, 8 Sup. Ct. Rep. 331.
