The plaintiff sued the defendant to recover damages for an alleged trespass upon real estate belonging to the plaintiff. The trespass complained of consisted of stripping tanbark from a large number of oak trees growing upon the premises.
The land described in the complaint consisted of four government subdivisions contiguous to each other, and constituting a tract one mile in length from north to south, and one fourth of a mile in width, except at the southernmost part thereof, where the Pacific Ocean cut off one corner thereof. The three southernmost tracts lay in section 31, township 5 south, range 2 east, Humboldt meridian, and were described as lots 1, 3, and 4 of said section, being the lots corresponding to the west half of the northeast quarter, and the fractional northwest quarter of the southeast quarter thereof. The northerly tract constituted the southwest quarter of the southeast quarter of section 30. The principal contention upon the trial arose over the location of the land with reference to the government survey, and a large part of the evidence relates to the location of the monuments placed at the corners by the government surveyors and the topography described in the field-notes of the official survey. The appeal is from the order denying the defendant's motion for a new trial. Many objections and exceptions were taken to the rulings of the lower court upon the admission or rejection of evidence, and these are alleged as errors which require a reversal of the order.
The plaintiff derived title under a patent from the United States issued to John L. Stewart. The patent describes the subdivisions above mentioned, and refers to the official plat of *Page 457 the survey of said land returned to the general land office by the surveyor-general. A certified copy of this official plat was introduced in evidence. It shows that the official survey of the township in question consisted of separate surveys of different parts of the township, made by different surveyors at different times. The west boundary was surveyed by S.W. Foreman, under contract of June 24, 1874; part of the south boundary was surveyed by G.H. Perrin, under contract of January 26, 1876; the remaining part of the south boundary was surveyed by J.R. Glover, under contract of November 13, 1876; and the whole of the south boundary was resurveyed and the lines of the sections and minor subdivisions of the township were surveyed by Foreman, under contract of January 13, 1883. It appears from the evidence that the survey by Perrin of a part of the south boundary was done under a contract for a survey of the township immediately south, being township 24 north, range 19 west, Mount Diablo meridian, and many of the so-called corners established by Perrin referred to in the evidence are what are called "closing corners" made by him in joining the survey in township 24 to that in township 5. A survey of plaintiff's land was made by Mr. Chapman, and the plaintiff's case depends on the accuracy of his location of the southeast corner of section 31 and other corners on the south township line from which the location of the boundaries of plaintiff's land was determined. The defendant claims that Chapman placed the boundaries about one fourth of a mile from their true location. One of the principal questions in the case was whether or not Foreman's survey of the south township line was identical with Perrin's, and whether or not Chapman found the true location according to the intendment of the patent. Chapman in his survey attempted to follow the lines as shown by the field-notes of the Foreman survey rather than those of the Perrin survey. The time of the issuing of the patent is not given in the record, or at least our attention is not called to it, but it is manifest from the evidence that it was issued after the making of all the surveys and the acceptance thereof as shown on the official plat.
The objection to the introduction of the field-notes of surveyor Foreman showing the resurvey of the southern boundary of the township was properly overruled. These field-notes *Page 458 were certified by the surveyor-general as a copy of the field-notes of Foreman on file in his office, and the official plats sufficiently identify them as the field-notes on which the patent was issued. They, therefore, became, in legal effect, a part of the patent (if no pre-emption or homestead rights have intervened, and none appear here) which constituted the plaintiff's title, and were properly admitted in evidence.(Chapman v. Polack, 70 Cal. 487.) It was not necessary to show any reason for the making of the resurvey. Prior to the issuing of the patent the government could make any number of surveys, as its officers might direct, and the last accepted survey is presumed to be the one on which the patent was issued, unless the contrary appears.
The various objections made to the admission in evidence of the field-notes of the Glover survey and of the action of the court in allowing references to be made to the field-notes of Foreman are disposed of by the remarks already made concerning the authenticity of these surveys. They each constituted a part of the survey of the township in which the land was situated, and for the purpose of locating the land it is proper to refer to either or both of them so far as they would aid in fixing the landmarks and boundaries.
Two witnesses, Breeden and Howard, testified that they were present and assisted one Richard York, county surveyor, in making a survey of the land in question, some eight years before the trial. Objection was made to these references to the survey of York upon the ground that there was no competent evidence that any such survey was made, nor that, if made, it was accurate or correct. If these witnesses had been called to prove the survey of York, this perhaps would have been an error, but it is manifest from their whole testimony that this was not the purpose. They were asked to testify with relation to certain landmarks which were found in the course of the survey and which they were as competent to observe and describe as any other person, and the point of this part of their testimony, so far as it was material, consisted in the fact that these landmarks to some extent corresponded with those mentioned in the survey of the plaintiff's land made by Chapman, which last-mentioned survey was introduced in evidence. Their testimony as to the existence of the landmarks some eight years before the trial *Page 459 was some corroboration of the later survey by Chapman. It was also admissible to show that they were familiar with the lines of the land in question according to the theory of the plaintiff, — that is, with their location, as fixed by the survey of Chapman. This familiarity was necessary as a foundation for further testimony by Howard concerning the damage done to plaintiff's land by the stripping of the bark from the timber thereon.
The defendant was called as a witness by the plaintiff, to testify to the fact that if the south boundary of the township was extended west from the established corner between sections 34 and 35, it would pass near to the stake established by Mr. Chapman, the plaintiff's surveyor, as the southeast corner of section 31, in which the plaintiff's land is situated, and to the additional fact that the quarter-section corner between sections 20 and 21 in the same township was a well-known corner and marked by well-known visible monuments. Upon cross-examination by the defendant's counsel, he was asked a number of questions which called for facts, or for his opinion concerning facts, affecting the respective merits of the two surveys, that alleged to have been made by Mr. Perrin of the south boundary of the township on the one hand, and claimed by the defendant to be conclusive as to the location of the land, and that made by Mr. Chapman for the plaintiff on the other hand, and which, according to the plaintiff's claim, established the corners so as to cover the land upon which the defendant committed the trespasses. These questions were objected to as not proper cross-examination, and were excluded by the court. There was no error in this. While some of the preliminary questions put to the defendant on examination-in-chief referred to these surveys, it was plainly not the object or purpose of the testimony elicited from him by the plaintiff to prove any facts except the two above mentioned — the location of a line extended west from the corner of section 34 with respect to the Chapman stake, and the well-known character of the quarter-section corner between sections 20 and 21. The defendant had not the right, upon the cross-examination concerning these facts, to go into an extended cross-examination with reference to the details of the respective surveys. Two of these questions objected to called for a description of the place where the stake of Chapman was set as the southeast *Page 460 corner of section 31 and of the objects which were visible from that point. If there had been any dispute concerning the location of this stake, this evidence might have been properly admitted, but as matter of fact there never was any question or doubt concerning it. The dispute was not as to the actual location of this stake on the ground, but as to the place where it should have been located according to the official government survey. The exclusion of this testimony, even if erroneous, could have caused no substantial injury.
Complaint is made of the action of the court in allowing a witness to testify concerning a survey made by one Sandow. The objection was that there was no competent evidence of any such survey, and that it was not proper to prove its accuracy or its existence by the testimony of those who assisted in making it. The testimony, however, was competent for the purpose for which it was introduced. The witness assisted Mr. Sandow in making the survey, and saw and observed the landmarks located by Mr. Sandow. Some of these were mentioned also in the original government survey. He subsequently assisted the plaintiff's surveyor, Mr. Chapman, in making a resurvey and relocation of the land, and upon that occasion saw many of the same landmarks. The corner from which Sandow started in making his survey was the quarter-section corner between sections 20 and 21, which was the same corner which the plaintiff himself testified was a well-known and well-marked corner. The witness testified to the courses and distances, run from thence, under his own observation, by Sandow, to the land in dispute, and his testimony tended to show that the correct measurement and course from that corner, according to the government survey, would locate the land in substantially the same place as that established by Chapman's survey, and, consequently, it would tend to corroborate the accuracy of Chapman's survey, and to show that it corresponded with the quarter-section corner which the defendant testified was well established. He testified to what he saw, and not to statements made by Sandow. It was therefore competent and relevant testimony.
The testimony of the witness Burg was properly admitted for the purpose of identifying the land subsequently testified to by Pryor. Pryor was called to testify concerning the commission of the trespass complained of, and he stated in a preliminary *Page 461 way that the particular land concerning which he testified was pointed out to him by Burg as the land belonging to the plaintiff, according to the survey made by Chapman. It was proper, therefore, to prove by Burg that he correctly pointed out the land to the witness Pryor. As the witness Pryor did not pretend to know anything about the accuracy of the surveys, the question put to him concerning the same was correctly excluded. A good deal is said in argument concerning a remark made by the court after questions to Pryor had been repeated several times by defendant's attorney. The defendant's attorney, in answer to some statements by the court, said, "I have a right to cross-examine the witness," to which the court said, "You have no right to impeach him." This is the remark complained of. We do not think the action of the court was so serious as to require a reversal of the case. It is true that counsel was not endeavoring at that time to impeach the witness, and the remark of the court, if it was properly taken down, appears to have been irrelevant. We cannot perceive how it could have done substantial harm to the defendant's cause.
The complaint made concerning the refusal of the court to permit the extended cross-examination of the plaintiff Kimball with respect to the details of a survey made by Chapman which he witnessed is without foundation. In his examination-in-chief the plaintiff had merely testified that he saw Mr. Chapman set the corners of his land, and that he afterwards pointed out the same corners to one George Howard, who subsequently testified concerning the trespass complained of. The cross-examination was properly excluded for the reason given in regard to the cross-examination of the witness Burg, — namely, that the witness had not, in his testimony-in-chief, claimed any knowledge of the accuracy of the Chapman survey, and that he was not called for the purpose of proving its accuracy.
There was no error in the instructions given by the court at the request of the plaintiff. The instructions complained of were as follows: —
1. "I charge you that the government of the United States can make a new survey and change and correct an older or erroneous survey while the land affected thereby remains government land; and after the acceptance by the land department *Page 462 of the correcting survey, the latter becomes the authorized and official one."
3. "I charge you that any corner or monument established by Perrin in his survey of 1876 was, so far as the land situated in twp. 5 south, range 2 east, H.M. is concerned, superseded by the corresponding corner or monument established or used by Foreman in his survey of 1883, if the latter survey disagrees with the former in relation thereto."
4. "I charge you that while it is true that the United States government can change or correct the surveys of its lands as it may see fit while the same remain government lands, after they are disposed of to settlers or purchasers, the last surveys made for, and accepted by, the land department before the disposal or purchase, is final and unchangeable; and any surveyor, who for private parties thereafter undertakes to re-establish or relocate lines or corners, should endeavor as nearly as possible to follow in the footsteps of the surveyor who made the last accepted government survey and place the corners and lines where they were placed by him."
5. "If you should find from all the evidence in the case, that Foreman in his survey in 1883, did not use the same line or the same location of corners run and established by Perrin in 1876, yet as to all the lines and corners which were not run or established by Perrin at all, but by Foreman only, the survey of Foreman must govern without regard to the question whether or not he used the same line on the south boundary of the township, which was used by Perrin."
7. "If you find from all the evidence in the case that the township surveyed by Perrin and that surveyed by Foreman were so surveyed by them respectively that the lines thereof overlapped yet the survey of Foreman must be followed in the township surveyed by him."
11. "I charge you that if you find from the evidence that Chapman, the surveyor, fixed the lines of plaintiff's lands substantially in accordance with the Foreman survey of 1883, it is your duty to bring in a verdict in favor of the plaintiff, J.A. Kimball, and fix the amount of damages in accordance with instructions heretofore given."
The official plat which was introduced in evidence was not in any way impeached or contradicted. It established the fact beyond controversy that the original survey of part of the *Page 463 south boundary of township 5 by Perrin was resurveyed by Foreman in 1883, and this being the case, the survey by Foreman would control in all disputes concerning the identity of the land included in the government patent subsequently issued. There was no evidence that any settler or purchaser had acquired any rights in the land in question between the time of the two surveys. It is probable from the evidence that the survey of township 24 made by Perrin in 1876 overlapped to some extent the survey of township 5 made by Foreman in 1883. But this fact cannot avail the defendant in his defense to this action. He does not claim any land in township 24 under the Perrin survey or any other survey. His defense consisted entirely in an attempt to show that the land upon which he stripped the timber of its bark was not the land patented to the plaintiff's predecessor, Stewart. From the evidence there can be no controversy over the fact that the subdivisions patented to Stewart were the subdivisions as surveyed and located by Foreman by the survey of 1883. That survey is therefore the one which must control the location of the land in question. Wherever that survey conflicts in any respect with the previous survey made by Perrin of the township to the south thereof, the Foreman survey must be considered as having superseded all previous surveys with respect to the land in township 5. The land of the plaintiff did not at any point touch the southern boundary of the township in which it was situated. Its location was controlled entirely by the corners and lines of the interior subdivisions as established by the Foreman survey. The only purpose which the Perrin survey could serve in establishing the location of the land was that of a check to the survey made by Foreman, and to aid in ascertaining the true location of the latter. The true location of the Foreman lines, however, when ascertained, establishes the location of the interior subdivisions of the township, regardless of any discrepancy that may exist between said lines and the south boundary of the township as established by Perrin, even if we should admit that the resurvey of that boundary by Foreman was not controlling. We do not think that the instructions complained of assume the existence of any fact which is not conclusively established by uncontradicted evidence, or by the law regarding official surveys of the United States government. Some complaint is made that the instructions *Page 464 given at the request of the defendant are inconsistent with those given by the plaintiff. Upon examining them, however, we do not think that the inconsistency exists.
Objections were sustained to a number of questions put by the defendant in cross-examination of plaintiff's witnesses and in the examination of his own witnesses, upon the ground that they were not in proper form. Many of these questions called for the conclusions of the witnesses who were not experts concerning the accuracy of the surveys and the situation or location of the land with respect thereto, and were incompetent for those reasons. Others were argumentative in form, and were properly rejected for that reason. It is not necessary to prolong this opinion to discuss errors of this character. The principle that questions of such form are improper is well established.
The last point made by the defendant is that the evidence is insufficient to justify the verdict. We have examined it, and are satisfied that there was abundant evidence in support of the plaintiff's case. The question is squarely presented whether the survey of Chapman made by the plaintiff indicated the correct location of the land in controversy. There was evidence sufficient to show that it did, and the contradictory evidence, such as it was, would have scarcely been sufficient, if taken alone, to justify a contrary conclusion.
The order is affirmed.
Van Dyke, J., and Angellotti, J., concurred.