Spring v. Hewston

         The surveys made by Hoadley and Potter control. (Rice v. Hollis, 1 Maule & S. 105; Down v. Cooper, 2 Q. B. 256; 15 Wend. 89, 90, 92, 97; 7 Cowen, 723; Columbet v. Pacheco , 48 Cal. 397: Hastings v. Stark , 36 Cal. 122; Sneed v. Osborn , 25 Cal. 620; 7 John. 245; 17 John. 29; 10 Wend. 104; 16 Wend. 281; 7 Johns. 283.)

         OPINION          By the Court:

         One of the descriptive calls in the mortgage to Moss is " north nineteen degrees, thirty minutes, west eleven chains, to the mouth of the creek (Islais Creek); thence, ascending the said creek, north eighty-one degrees, west five chains," etc., giving certain courses and distances, until arriving at a certain point, and then " crossing the creek to the end of old wall on the north side of the marsh." If the courses and distances from the mouth of the creek be followed as the true line, there will be excluded from the mortgage a strip of land between this line and the creek, which includes the premises in controversy.

         On the contrary, if the creek is the true boundary, then the premises in controversy are included in the mortgage, under which the defendants claim through a foreclosure sale. The Court below held that the premises in dispute are not included in the mortgage; and on that assumption entered a judgment for the plaintiff. We are all of opinion that this ruling was erroneous, and that the creek is the true boundary, and consequently that the premises in controversy were included in the mortgage.

         The plaintiff, however, contends that the defendants are estopped by two surveys, one by Hoadley and the other by Potter, establishing, as is claimed, an agreed line. In respect to the Hoadley survey, as we understand the testimony, Hoadley was selected simply to ascertain the true line as fixed by the mortgage, and not as an arbitrator to establish such other line as he might consider equitable under all the circumstances. We have been referred to no adjudicated case which holds that such a survey, of itself, independently of other circumstances, creates an estoppel. The same remark applies to the Potter survey; and, moreover, the agreement for this survey was between the plaintiff and the defendant Williams only, and of course would not bind the other defendants.          Judgment and order reversed, and cause remanded for a new trial.