I dissent. In eight of the claims of lien the description of the property affected was as follows: "Commencing at a point on the northerly line of Sutter Street distant thereon 137 feet and 6 inches from the westerly line of Scott Street, running thence westerly," etc. Here is admittedly a patent ambiguity in the attempt to fix the point of commencement. Conceding that the place for fixing the point of commencement is the intersection of the northerly line of Sutter Street with the westerly line of Scott Street, it cannot be declared whether the true point of commencement is distant one hundred and thirty-seven feet and six inches easterly or westerly on the northerly line of Sutter Street. There are thus certainly two points of commencement which equally answer the call in the description. This is conceded in the opinion of the appellate court, *Page 754 which is by this court adopted, which declares that the difficulty in the description is the "uncertainty" as to the point of commencement. It has always been a fundamental rule of construction that such a patent ambiguity appearing upon the face of the instrument cannot be explained or aided by parol evidence. Thus, in Brandon v. Leddy, 67 Cal. 43, [7 P. 33], the description in the deed applied equally to certain lots which the grantor did own, as well as to certain lots which he did not own. This court in Bank declared: "The map referred to in the deed from Carney to Rosaria Bernal must be considered as incorporated in it. The deed therefore shows upon its face that there are two lots to which the description equally applies. From the deed itself it cannot be ascertained which lot was intended to be conveyed, and as the ambiguity is patent, resort cannot be had to parol. Our conclusion is that the deed in question is void for uncertainty of description." To like effect is People v. Klumpke,41 Cal. 264. The general principle is likewise declared in Phillips on Mechanics' Liens (sec. 385), to the following effect: "A description containing a patent ambiguity will not, however, be referred to a jury, but be declared by the court to be void for uncertainty." Moreover, to aid and perfect this description it is necessary to take evidence as to the direction of an ungiven course; that is to say, it is necessary to show that the point of commencement was westerly along the line of Sutter Street from its westerly intersection with Scott Street. But this again is evidence which this court has distinctly declared cannot be received. Thus, in Best v. Wohlford, 144 Cal. 733, [78 P. 293], it is said: "If a monument is given as the starting-point evidence may be given to show its location. But if the directionof the course from that monument is not given, evidence will notbe received to show what direction was intended."
In my judgment, if the description above given can be upheld as sufficient, it can be upon no other theory than that any description which in any way, and by any sort of evidence, can be made to apply to any piece of land is sufficient for identification, and this notwithstanding the command of the statute that the description in the claim of lien must in and of itself be sufficient for identification. Logically, therefore, if the description here in question is to be held sufficient, *Page 755 it must be said, and by this court should be said, that a description as being the land of John Smith in the city and county of San Francisco complies with the statute if it can be shown that John Smith owned any land in San Francisco, that any structure was erected upon that land, and that the lien claimant furnished labor or material for the purposes of that structure. This may be the meaning of section 1187 of the Code of Civil Procedure, though I cannot bring myself to believe that it is. But if it is, considering the importance of the question and the very numerous cases that arise under this statute, this court should so declare.
McFarland, J., concurred in the dissenting opinion.
The following is the opinion rendered in the district court of appeal for the first district on March 13, 1906: —