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Full text of "Andrew McNamee, respondent, vs. Daniel McCusker et al., appellants. Transcript on appeal. B.S. Brooks, for appellants. A. Craig, for respondent"

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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 <i u 102 

" " «' " " recalled. . . . 105 

" " Edward McNamee 49 

" '' Munro Shattuck 55 

" " " " in rebuttal 182 

,, ,, Peter McNamee 79 

" " Ebenezer Nediver 83 

" " Kingsley King 87 

" D. McCusker 100 

" •' '' " recalled 180 

Stipulation as to Statement 193 



eti 



IN THE SUPREME COURT 



2 







In, the District Court of the Third Judicial District 
of the State of California^ held in and for the 
County of Montereij. 



Andrew McNamee, 

Plaintiff, 

Daniel McCusker, W. R. Frisbie, 
John Doe and Richard Roe, 
3 Defendants. 

. / 



^ 



Complaint. 

Andrew McNamee, the above-named plaintiff, a 
resident of the County of Monterey, Slate of Cal- 
ifornia, comes and complains of the above-named 
defendants, D. McCusker, John Doe and Rich- 
ard Roe, whose real names are unknown to this 



2i)lti28 



2 - 

plaintiff, and who are therefore sued by the name 
4 of John Doe and Richard Roe, ami, for cause of 
action and complaint, alleges and shows to the 
Court. 

That heretofore, to wit, on the 14th day of 
November, a. d. 1867, the said plaintiff" was, and 
ever since has been, and still is, seized in fee- 
simple of, and was in the lawful possession of the 
following described premises, situated in the 
County of Monterey, State of California, bounded 
and described as follows, namely: being a part 
of lots numbers 6 and 7 of section number 31 in 
Township number 12, south of range No. 2 east, 
*^ beginning at a post marked M 2, on the south- 
erly boundaiy line of the rancho Bolsa de San 
Cayetano, at the point where the division fence 
between the lands of D. McCusker and Andrew 
McNamee intersects the said rancho line, and 
running thence southwestei'ly and paialle! with 
said division fence 4f,~^ chai is to a fen:ie; thence 
in a southeasterly direction, and along said last 
mentioned fence and paiallel with the said south- 
ern bo.mdai'y line of said Rmcho Bolsi de San 
Cayetano 4-> 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<nidant. and orders 
that judgment be entered accordingly. 

Wherefore, it is ordered and adjudged that the 
said plaintiff, Andrew McXamee, do have and 
recover of and from said defendants, Daniel 
McCusker and W. R. Frisbie, the possession of 
all that certain tract of land lying and being sit- 
uated in the County of Monterey, and State of 
California, bounded and described as follows, to 
wit: 

Being a part of lots numbers 6 and 7 of sec- 
■*-^ tion number 31, in Township number 12, south 
of range No. 2 east, beginning at a post marked 
M 2, on the southerly boundary line of the ran- 
cho Bolsa de San Cayetano at the point where 
the division fence between the lands of D, Mc- 
Cusker and Andrew McNamee intersects the 
said rancho line, and running thence southwes- 
terly and parallel with said division fence i^ 
chains to a fence ; thence in a southeasterly di- 
i-ection, and along said last-mentioned fence and 
parallel with the said southern boundary line of 
15 said Rancho Bolsa de San Cayetano 48 chains to 
the division fence between the lands belonging 
to A. McNamee and tlie heirs of L. P. Cliapiu, 
deceased ; thence northeasterly and along said 
fence Aj^ chains to the said southerly boundary 
line of said Rancho Bolsa de San Cayetano ; 
thence north 67 west along said southerly boun- 
dary line of said Rancho Bolsa de San Cayetano 
to the said post marked M 2, the place of begin- 
ning, containing 19^ acres of land. 



6 

And it is further ordered and adjudged, that 
16 the said phiintiff do have and recover of and from 
the said defendants the sum of seventy-nine dol- 
lars, damages, for the withholding of said prem- 
ises and the possession thereof from the plain- 
tiff by said defendants. 

And it is further ordered and adjudged that 
the said plaintiff do have and recover of and from 
the s<iid defendants the sum of one hundred and 
fourteen So dollars, for his costs herein laid out 
and expended. 

The foregoing judgnu-nt rendered in open 
Court, this od day of October, a. d. 1870. 
1^ W". M. R. Parker, Clerk. 

(Endorsed) Filed Oct. 4th, 1870. 



18 



[title of court and cause.] 

Notice of liiieution to Move for a New Trial. 

Please take notice, that the defendant in the 
above-entitled cause intends to move said Court 
for a new trial of said cause, on the following 
grounds, to wit: 

1st. Insufficiency of the evidence to justify 
the judgment, or decision, of the Court. 

2d. That said judgment, or decision, is against 
law, 

3d. Errors of law, occurring at the trial, and 
excepted to by said defendant. 

Julius Lee, 
By B. S. Brooks, 
Attorney for Defendant. 
To A. Craig, Esq., At'oruey for Plaintiff*. 



City and County of San Francisco, ss. 
19 William Leviston, being duly sworn, deposes 
and says, that A. Craig is the attorney for the 
plaintiff in the above cause, and resides in the 
town of Watsonville, in the County of Santa 
Cruz; that, on the 7th day of November, 1870, 
lie sei'veil the annexed notice on said Craig, by 
sending to the U. S. Post-office in said City 
and County of San Francisco a true copy of said 
notice, enclosed in an envelope, with the postage 
thereon duly prepaid, addressed to said Craig at 
said town of Watsonville. 

Wm. Leviston. 
Subscribed and sworn to before me, this 18th 
day of November, 1870. 

[notarial seal.] James G. Carson, 

Notary rublic. 
Filed November 21, 1870. 

Wm. M. R. Parker, Clerk. 

(Endorsed) Notice of motion for new trial. 
Filed Nov. 21, 1870. 

W. M. R. Parker, Clerk 



20 



21 



[title of court and cause.] 

Notice of Intention to 3Iove for New Trial. 

Pleas3 take notice, that the defendant in tlie 
above-entitled cause intends to move said Court 
for a new trial of said cause on the following 
grounds, to wit: 

1st. Insufficiency of the evidence to justify 
the judgment or decision of the Court. 



8 

2d. That said judgment or decision is against 

22 law. 

3d Errors of law, occurring at the trial, and 
excepted to by said defendant. 

Julius Lee, 
By B. S. Brooks. 
Attorney for Defendant. 
To A. Craig, Esq. 

I admit due service of the within at Watson- 
ville, this 1 1th day of November, 1870, waiving no 
right to move to dismiss. 

A. Craig, 
Attorney for Defendant. 

23 Filed May 29, a. d. 1871. 



[title of court and cause.] 

statement on Motion for New Trial and on Appeal. 

This cause came on to be tried before the 
Judge, sitting without a jury, (a jury having been 
waived by both parties, by consent, in open 
Court,) on the 7th day of April, 1870, and were 
tried together. 
24 The plaintiflf, upon his own motion, dismissed 
the suit as to the defendant, Frisbie. 

The plaintiff, to maintain the issues joined, in- 
troduced in evidence the following stipulation^ 
viz : 

It was stipulated by and between the re- 
spective parties tliat. in this case, S. W. Smith 
will testify that he made a survey of the south- 
west boundary of the Ranch of San Cajetano, 



running from station " B. S. C. 10," lo the 

2;) southwest corner of the ranch, as called for 

in the patent, course north G7°\vest to the station 

on the Paj.iro River ; that lie also ran a line north 

68^'' west from the station " B. S. C. 10." That 

he also ascertained that McCusker's fence is 

erected on tlie line north G8i west. 

That said Smith also ascertained, by actiiaj 

survey in 1870, the corners of sections 25, 30, 

31 and 36, called for in patent, by running 

on the Township line one mile north from 

the standard, au'l that the said corner is located 

two chains and thirty links north of McCusker's 
or 

fence or line, north 68^*^ west, and 3 chains and 

70 links south of the line north 67° west. 

That s lid Smith, at the time of makins; said 
survey, was County Surveyor of Monterey Co., 
and that he made a diagram or plat of the south- 
w> 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 <i fence that runs across a little bot- 
tom, and strikes the river at a point below Terrell's 
line; it runs to a little bush in the bottom to 
a point through that bushy land. There was a 



25 

timber fence that connected with the river still 
73 above the Stratton line. I had an enclosure up 
to the time that the survey was made there by 
Terrell I think, in 1858, or 1859. I had a piece 
of land enclosed by four lines of fence, with the 
exception of a very little at the upper end where 
it was fenced by the bank. The distance from 
the Terrell lino to the upper end of that fence 
was nearly a chain, from three to four rods. There 
was a fence most of the way from the point where 
the fence struck the river, down along the bank 
of the Pnjaro river. As I have stated, I depend- 
ed on the bank for the fence, as there was no 
' chance for stock to go through there. Some of 
the way there might not have been any fence, 
and in some places one slat or so. That fence 
extended something like seven chains down the 
bank, from where the upper fence struck the 
river in the year 1858. It extended the whole 
distance down to the Str.itton line. I cannot 
tell how far it extended before there was a break 
in it. I think there was two or three ro.ls where 
there was no fence at all. It might have been 
four, I think there was no fence above this old 
75 fence. I suppose this fence corner might be 
something near three or four rods above the Ter- 
rell line and Smith line. I never thought to vi }w 
it so as todetermine the distance, but three or 
four rods above the Terrell and Smith line. The 
purpose of the fence in 1858 ami 1859 was to 
enclose a small piece of land which I used as a 
garden. Where Terrell established his corner 
was but a few feet from the corner of the end of 



2G 

the fence. Tliere was a small fence at the time 
76 that lie made his survey. It ran down the river. 



77 



Peter McNamee, 

A witness on behalf of plaintiff, being duly 
sworn, testified: 

My father and I live on lots 6 and 7 of section 
31, Township 1, Range 2, I know it. I got 
Smith the County Surveyor to survey it, to see 
how much there w*as in it, between the Ranch 
and McCusker's end of the line. 

Counsel for the defendants moved to s'rike out 
the above answer, on the ground that tlie inf)rm- 
ation of witness was hearsay. 

The Court overruled the objection and defend- 
ant excepted, and his exception was noted, 

I know the land described in the complaint. 
It is a part of the 1 ind described in the patent, 
and surveyed by Smith. I do know who is in pos- 
session of the land in controversy. It is McCus- 
ker. I know the land from the description of 
the fen 'e, and the boundaiies given. 

Being Cross-ExamIxNEd 
y^ By yi'r. Brooks, he testified: 

I know lots 5 and G, because Smith ran out the 
line and located the land. 1 know he did it be- 
Ciiuse my father got him to locate it and run out 
the line. He drew a plat of it which I suppose 
is here. This is the map. I know lots 5 and 
6, because Smith made the survey of them at the 
request of my futher, and made a plat of them, 
and I (ind on the map something about lots 6 
and 7. 



27 

I know the land described in the coinpbiint as 

79 lots six and seven of section 31, hecanse the deeds 

from the Government show that. 1 know what 

tliis suit is about. It is about this land my father 

lives on now. I know tliat tiie land is part of 

lots G and 7, because it was run out and located 

by Smith. Smith ran the courses to see how much 

land there was on it and how much there was on 

the outside. That was what Smith did, to run 

the lower line of the San Cayetano Ranch, to 

see how much land there was between that and 

the Stratton line. He ran tlie courses to see 

liow much there was between the lines. 
8') 



Ebenezer Niediver, 

A witness on behalf of plaintiff, being duly 
sworn, testified : 

I have been engaged in surveying and farming. 
Some 14 years I have been engaged in surveying. 
I know something about the San Cayetano Ranch* 
1 do not distinctly know where the southern 
boundary of the ranch, known as Terrell line, 
t^l touches the Pajaro river. I know nothing 
about where the survey of Smith touches the river, 
but the course wh'ch was pointed out to me as 
the place '' C and L." 

I know where there is a post marked " B. S. C, 
11," which was pointed out to me as the post es- 
tablished by Stratton. The post is situated from 
Shattuck's house, north, I should think, some 
two or three chains. I chained the bottom of 



28 

that Stratton line, from the river to the table- 

82 land. The width of that bottom from the river 
from the Stratton corner to the table-land, is 5 
chains and 80 links. My object in chaining it 
was to find out the width of the bottom. 9 
chains and ten links was the width of it. That 
point is above the Stratton line — 3 chains and 
40 links above the Stratton line. I know noth- 
ing more about the Smith line than as it was 
pointed out to me. 

Being Cross-Examined 

83 ^^y ^^^- Bi'ooks: 

I only chained to the edge of the river, but 
I think it would be 6J or 6J chains from the 
table-land to the river, on the Stratton line. We 
did not chain it only to the edsfe of the bottom. 
From where I commenced to descend, fro'u the 
table land to the river, it would not be eleven 
chains; it would be something over 6 chains from 
the table land to the river. Yes, from the bank, 
at the edge of the bottom land. That is the 
best of my recollection, but I did not chain it. 
I was employed to chain the river to where the 
^^ land commences to rise. I did not chain the land 
from the point from where it commences to de- 
scend. 



Kingsley King, 

A witness on behalf of plaintiff, being duly 
sworn, testified: 



29 

I know the Shattuck house spoken of here. 
85 The other day I saw the course established there 
by Stratton in 18G2, near the house. I formerly 
lived there. I took the place up in 1852, along 
in the fall, and I lived there till the first day of 
November, 1857. There was no fence below the 
Stratton stake on the river. I did not see any 
there since there was none below that on the 
river. 

Being Cross-Examined, 

By Mr. Broohs. I have been on it twice 

since 1857. I l)uilt a house there. It stands 

86 

there now. 1 built a fence from the house to the 

river, about -JS j^ards from the present line of 

fence. I think there is a poi'tion of it there now, 

towards the hollow. The fence does not stand 

in the same place, but I should judge, from the 

appearance of the timber, that it is the same 

fence. It was a rail and post fence — it was a 

substantial fence I think that same timber is 

there now. I did not build any fence along the 

river. I did not see the fence from the time I 

left it, in November, '67, for six months afler- 

87 wards. I was next on the property in 1859. It 

was along in the spring sometime. There looked 

to be about the same fencing as when I left, [did 

not notice any more. I think there was more at 

the time, between me and McCusker's house. I 

did not notice any fence on the river bank. There 

was a fence that run along upon the Bluff. In 

the summer of 1859, when I first saw it, I had 

a fence that was attached to it. (Witness pointed 



89 



30 

out on tlie map where these fences were.) This 
fence was about forty yards fiom the river. It 
ran up on the Bluff 200 yards. I saw where the 
Smith line was said to terminate on the river. I 
saw a stake there to make the point. I did not 
notice any fence at that point in 1858 or 1859. 
At that point there was none there, when I sold 
it. The fence I speak of, which ran along the 
Bluff, was about half way below that. It was 
about 35 yards from the lower line up to where I 
had my fence. The rnap represents the shape of 
the country pretty well, where the line strikes 
the Pajaro river. 

Re-direct Examination. 

When I lived there, there was no fence along 
the bank of the river up to the Stratton line — 
there was another house there besides the 
Shattuck house above it. I think it was 75 
yards above Shattuck's house. Shattuck suc- 
ceeded me in my possession. I don't know if he 
did take possession soon after. I then left for 
the lower country, and he was there when I 
90 came back. It stands in the same position as 
when I left it. 

The plaintilT' here rested. 

Counsel for defendants moved for a nonsuit, 
on the ground that plaintiff had not shown any 
title to the land described in his complaint. 

The Court denied the motion to which defend- 
ant, by his counsel, duly excepted. 



The defendant then, to maintain the issues 
91 joined on his part, called as a witness: 

Daniel McCnsker, 

Who, being duly sworn, testified as follows: 
I know the land in controversy in this suit. I 
have known that land since 1853. I know the 
point on the river where the Smith and Stratton 
lines terminate. I have known that land for some 
time. I was not there when the survey was made 
by Terrell. There was only one fence there in the 
summer of 1858. It was right on the Stratton 
line. That fence did run down to the water, in- 

' "' to the water. The make of the land, at that point, 
was a kind of mud flat, from the bank on the 
river. The make of the shore w^as a kind of 
bottom land. The length of the bottom land, 
from the river to the table-land, is 9 or 10 chains 
on the line of the Stratton fence. On the Smith 
line, it is probably 8 rods till you strike this bluff; 
over the bluff till vou come to this sloii2;h, it is 
probably four or five chains. There is a little 
bottom land, between that high point and the 
river. That map annexed to the patent represents 

93 the topography of the country at the river. I 
was present when Stratton ran that line. I was 
present when he ran that line on the Pajaro 
river. I was present at the conversation between 
Stratton and Shattuck. and there must have been 
eight or ten others present. What took place 
was this : I didn't own the land at the time. We 
were quarrelling about the line. After some con- 
versation, Shattuck finally said to Stratton. that 



32 

he (Sliattuck) must " give it up," — that he (Strat- 

94 ton) was within two or three feet of the stake 
which Terrell put down. Stratton's stake or cor- 
ner was right where the fence was, a little piece, 
probably two or three feet, from the posts, right 
up against the slats. It was a kind of a slat-fence. 
It was kind of old. I would suppose it was there 
some 13 or 14 years. It had been there as long 
as I have known the land. There was not any 
fence running along the bank from that point up. 
Shattuck came there inXovember, and that stake 
was put there in June following. There was no 

fence there terminating at the river, above the 

95 • 

Stratton line. I think there was no fence there 

but this one. Stratton marked the line after it 
was established b}^ him. He put stakes down in 
every place, so as to put a fence on. After the 
line was established, the fence was put there in- 
side of a year. Shattuck put up half, find I put 
up some. Shattuck paid half. I put up some, 
and McNamee put up some. Shattuck paid his 
half, and the others paid half. 1 think that map, 
(Smith's,) does not give the proper position of the 
fences that cross that line. My west fence is 
90 about half a mile from the Pajaro river. The 
fence runs between me and McNamee, on the ranch 
line, — that is, on the regular section line. The 
fence nearest the river takes the course, I think, 
about east and west. That fence is no regular 
line between Shattuck and I. I should think it 
is east and west. The fence which was put up 
by me was a substantial fence and a good one ; 
the other fence would turn stock. It was so cal- 



33 

ciliated, according to the Stratton survey, to be a 
1)7 permanent boufidary; tliut line was acquiesced, 
until this township was laid out, about three or 
four years ug;o. I think about three years ago. 
The deed from me to Shattuck was a deed of ac- 
coniniodation. I lived in another township, and 
we both had lands on eacli sido of the township 
line. He entered Jie land for me adjoining his in 
his township, and I entered land for him adjoin- 
ing mine in my township. Finally, we agreed to 
deed this land back again. We both made loca- 
tions of school lots, and wo both quit-cl.iimed to 

each other. 
08 

Defendants then ofiered and i-ead in evidence a 
deed from Shattuck to ^[cCusker, dated March 
3d, 18G4, cind recorded on the same day; page 
550, Book E., which deed is in substance as 
follows: 

Munroe Shall iick to Daniel MeCusker. 

Deed dated March od. 18G4, 

Consideration, $1. 

(xrants, bargains, sells, remises, conveys and 
9^ quit-claims all the rig'it, title and interest of 
party of the first i)art to tlie following described 
land, located by the i);irty of the first part under 
tlie law relative to the sale of the five hundred 
thousand acres of land, donated to the Slate for 
school purposes, and the seventy-iwo sections 
doniited to the State for the use of a seminary of 
learning. Approved April 23, 1858, and of tlie 
Acts amendatory thereof. Approved Feb. 18, 



34 

1859 and April 22, 1861. Located by Leander 

100 Ransom, State Locating Agent, on the 14th day 
of March, I860, and approved by the State Sur- 
veyor-General of California, on the 27th day 
of June, 1863. and is the N. E. J of S. E. i sec. 
Scd. of sec. 06, and that part of the S. E. i of 
N. E. J Scd. of sec. 36, lying east of the present 
division fence of party ^f first part and party of 
the second part, and west of the east boundary 
of sec. ^^>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 <lo not. 

118 Q. State whether or not there is a fence on 
tlie line from this stake to the other corner on 
the Estero that you spoke of? 

A. I do not know whether there is a fence 
exactly on the line. There is a fence near about 
on a portion of the line. 

Q. Following up the bank of the river from 
this stake, what is the character and topography 
of the country, and what objects, if any, did you 
observe there ? 

Objected to by plaintiff's counsel, upon the 

grounds that the same is incompetent; that it 

119 . . 
does not appear that the witness knows anything 

about the topography, or line running up the 

river. 

A. There is a small bottom extending about 
twelve or fifteen chains; from thence the river has a 
precipitous bluff* bank, and I noticed another red- 
wood stake, with some letters marked on it, near 
the upper end of the small bottom. 

Q. Do you remember what the letters were 
on this stake ? 

A. I do not, as I did not examine them particu- 

120 larly. 

Q. What is the distam^e of this s'ake above 
the other stake, at the corner of the rancii you 
have mentioned ? 

Objected to by plaintiff", as incompetent, 
A. 1 did not measure the distance, but should 
judge it to be about ten chains. 

Q. Is this upper stake the corner of the ranch, 



41 

as established by tlie survey you speak of as 
121 nia<le in a. d. 1858? 

A. It is not. 

Q. Is the lowor stake you speak of, at or near 
the corner established by that survey ? 

A. I think it is about tiie same place. 

Q. Do you know the course of this southwest- 
erly boundary line, from the corner you speak 
of on the estero or slou<i;h ? 

A. I do not. 

Q. Do you know how that line came to be 

run in the corner it was? 

A. I do not now recollect. 
122 

Q. Do you recollect whether that line was 

established by actual surve}^ or calculation ? 

A. It was established by calculation from an 
actual survey. 

Q. Vv^ill you explain a little more fully how 
the actual survey was made from which the cal- 
culation was had ? 

A. By chaining a line from the estero across 
to the river, in several courses from which the 
straight line between the two points was calcu- 
lated. 
123 Q. Had the two points you have named, to 
wit: the point on the estero and the point on the 
Fajaro river, been established before this south- 
westerly line was run or calculated. 

A. The two points were established before 
making the calculation. 

Q. How near does this lino run to the small 
house you speak of? 



42 

A. I think it will run or pass about three or 
124 four rods to the east of the small house. 

Cross-Examination. 

Q. In what particular capacity was you act- 
ing in 1858, the time that survey was mad a, as a 
surveyor, or chain carrier, or employee of the 
Deputy- Surveyor ? 

A. I was employed and acting as chain car- 
rier. 

Q. Have you been on the premises at any 
time since 1858 up to and until to-day? 

A. I have not, excepting merely to pass along 
"^ the road through the ranch. 

Q. About how far is the road you pass from 
the river at this point ? 

A. About two and a half or three miles. 

Q. Is the topography of the country such 
that you can see the point on the river and house 
you refer to, from the road? 

A. I think not; I think you can't see them. 

Q. Then you have not seen this point on the 
river about which you swear, for twelve years ? 

A. I have not seen it since the time of mak- 
126 ^"g the survey, in 1858. 

Q. Is not the end of the fence to which you 
have referred in your examination in chief as be- 
ing the lower stake and fence, the north end of 
the fence which you speak of as running along 
as near the line, and being the division line of 
McCusker's premises ? 

A. It is the north end of the fence to which I 
referred as running along or near the line; but 



43 

as to its being a division fence of McCiisker I 

127 know nothing about, 

Q. Was this line-fence there at the time you 
carried the chain in 1858? 

A. I do not recollect of any fence excepting 
in the river bottom. 

Q. About how long was that fence in the 
river bottom? 

A. 1 think it was about thirty rods. 

Q. Was you there as chain carrier at the run- 
ning of the line up the Pajaro river, or northern 
boundary of the rancho ? 

A. 1 was present and carried the chain in 

128 . . 

running the line along the Pajaro river. 

Q. When was that? 

A. At the time the survey was made in 1858. 

Q. Where did they commence to run that 
line? 

A. In the Pajaro river, at the northeast cor- 
ner of the ranch. 

Q. Was it not run from the northwest corner 
of the ranch at that time — from a point on the 
Pajaro river, easterly? 

A. I think the two first courses from the 

129 northwest corner of the ranch were run up the 
lines. 

Q. Your estimate of distance of rods and 
chains from the house and from where the line 
descends into low lands from the tei-minus of the 
lines there is not made from any survey made by 
you, but simply from your observation and re- 
collection of the lay of the country in 18.JS ? 

A. Only from my obseivation and recollec- 
tion. 



44 

Q. About how many rods is it from the upper 
130 stake on the river you spoke of, to the precipitous 
or bluff batik up the river ? 

A. The ascent of the bank commences at 
about eight or ten rods; it is perhaps twenty- 
five rods to the top of the bank up the river or 
easterl}^ 

Q. On a line commencing at the upper stake 
and running through on a straight line to the 
southeast corner of the ranch on the estero, about 
how many chains is it from the upper stake to 
where the line would ascend into table-land ? 
-„- A. About two chains. 

Q. Commencing at the lower stake on the 
river and running to the southeast corner of the 
ranch, how far is it to where it ascends the table- 
lands ? 

A. About seven or eight chains. 

Q. Did you notice that, particularly, to-day ? 

A. I did. 

Q. At the time the calculated line you say 
was run from the southeast corner of the ranch 
to the river, was there any stations or monu- 
ments erected ? 
132 A. There were no monuments erected of any 
kind, that I can recollect of, excepting at the be- 
ginning and terminus of the line. 

Q. Do you know whether there were any sta- 
tions or section corners along that line, by which 
the line was established ? 

A. None, excepting at the south east corner 
on the estero, which is connected with the section 



45 

corner, which .southeast corner on estero is near 
133 a quarter section corner on the starnlard line. 

Q. Where the lower stake, about which you 
speak, is situated, has any of the Pajaro river bank 
washed away since you were there in 1858? 

A. From appearances, a very little, if any, 
of the bank lias been washed away. 

Q. What was the course of that fence wliicli 
you speak of having been there in 1858? 

A. I do not know the exact course. 

Q. On a Hue running through, from the lower 
stake, was the bottom a level bottom in 1858? 

A. In runninof from the lower stake on the 
river, in the direction of the corner on the estero, 
the bottom is level for seven or eight chains, to 
where the line ascends the table-land. 

Q. Was there any brush on that line in that 

bottom in 1858? 

A. I think tliere was some willows. 

Q. On a line from the corner of the estero to 
the upper stake, does not the line descend into 
low or marshy lands, ten or twelve chains, before 
reaching the bank of the river? 

A. It crosses a low^ narrow place, extending 
135 from the bottom lands up into the table-lands. 

Q. After crossing that narrow place, over what 
kiud of land would it run from there to tiie river? 

A. Over high point of table-land. 

Q. About what is the altitude of that table- 
land immediately where the lino would cross 
above the bottom land ? 

A. I should think it was from twenty to thirty 
feet. 



4G 

Q, Bo you know the course that a line run 
136 from the point on the estero to either point on 
the Pajaro river ? 

A. I do not. 

Q. Who, if any one, directed your attention 
to what you have termed the upper stake in your 
examination ? 

A. Mr. McCusker. 

Q. Do you not know that the so-called lower 
stake was placed where it now is by one Sirat- 
ton, after this rancho was patented ? 

A. I don't know when nor by whom it was 

put there. 

137 

Q. Is there any other fence at or near the 

Pajaro river, where the said lower stake is situa- 
ted, than that which runs along or near the line 
of which you spoke in your examination in chief ? 

A. There is a picket fence, or some pickets, 
along the bank of the river. 

Q. Was there any person living in the house 
you speak of, at the time you speak of, in 1858 ? 

A. I was not in the house at that time, though 
I think it was inhabited. 

Q. Are you sure that that house still stands 
133 where it did in 1858 ? 

A. I am quite certain that the house novV 
standing there is the same house, and stands in 
the same place where it did in 1858. 

Q. If the north line of the San Cayetano 
Rancho was run, by commencing at the north- 
east corner of the ranch, down to the northwest 
corner of the ranch, and the courses and distances 
along the meandering of the river taken, could 



47 

those courses and distances be correctly given by 
139 commencing at the northwest coi-ner, and run- 
ning thence to the nortlieast corner, without a 
survey of the line from the northwest corner to 
the northeast ? 

A. Certainly, just as correctly. 

Q. Would that then not be what you term a 
calculated line ? 

A. It would not be, as it requires no calcula- 
tion whatever; the courses are nearly reversed. 

(t. Howard Thompson. 



110 



State of California, ] 
County of Santa Cruz, ) 

I, John A. Barham, a Notary Public in and for 
Siud County of Santa Cruz, do hereby certify 
that the witness in the foregoing deposition 
named, was by me duly sworn to testify the 
truth, the whole truth and nothing but the truth. 
That said deposition was taken at tlie time and 
place mentioned in the annexed stipulation, 
•^^^ marked " A.'" to wit: At my office, in said town 
of Watsonville, County of Santa Cruz, in the State 
of California, and on the 9th day of Marcli, a. d. 
1870, between the liours of o v. m. and 9 p. m. of 
that day; that said deposition was reduced 
to writing by me, and, when completer], was by 
me carefully read to said witness, and being by 
him corrected, was by him subscribed in my 
presence. 



48 

In witness whereof, I have hereunto subscribed 
142 my name and affixed my seal of office, this 10th 
day of March, a. d. 1870. 

John A. Barham, 

Notary Public. 
(Endorsed) Filed April 4, 1870. 

W. M. K. Parker, 

Clerk. 



143 



Defendant also read in evidence the deposi- 
tion of 

James T. Strattoii, 

which were in the words and figures following : 

I am the surveyor who was appointed 
as one of the commissioners in the decree 
of partition in the case of Atherton vs. For- 
tule in this Court. I am a practical surveyor, 
and have been for the last twenty years in this 
State, and three years before that. For nearly 
ten years past I have been United States Deputy 
Surveyor for California. I am lamiliar, of course, 
with the practices of the Surveyor-G-eneral's 
Office. I made a survey of the exterior lines of 
144 the Rancho Bolsa de San Cayetano in making 
the partition above referred to. I had at that 
time a plat of the final survey of that rancho, 
made under instructions of the United States 
Surveyor-General for California, and a copy of 
which is annexed to the " patent" of said rancho. 
I ran over the courses and distances called for 
by that plat at that time, with the plat before me, 
and re-established the courses of the rancho, in 



49 

accordance with tliat plat. T (Ictormiiicil tlic 
145 })()ints of beginning "at a point on tlie Pajaio river 
recognized as the dividing line between this ran- 
cho and the ranclio Vega del Rio del Pajaro,"' be- 
cause it was undisputed and was fenced at that 
})v)int. The witness [lost, on the sontln'rl}' Ijank of 
the river, the crossing of the road and the oak tree 
at which the first course terminates also fixed 
the points ot beg'.nning bejond any question. 

In retracing the SDUtherly e isterly boundary, 
I found that the courses were evidently calculated 
courses, and v iried somewhat, but I found the 
oak trees terminating the 2d, 3d, 4th. 5th, Gth, 
7th and 8th courses marked as on the plat. 
They varied in coursi and distance both. At 
the end of the 8tli course, I struck the bank of 
the slougli or estero at Station No 9; from that 
point I -'etracc'd the courses and disianceson the 
l)lat, and established each of the stations to the 
intersection of the od standard. These courses 
last si)oken of, lik.' the former, I found quite 
incorrect. Many of thosj lines are calculated 
lines from meanderings, and I found it impossi- 
ble to locate them on the ground, except by 
147 reference to the natural objjcts they reler to. I 
re-established the post ' H. S. C. 10," and " sec 
4," by retracing tlie 3tl standard line south, ol 
chains east of the corner, to sections 4 anl 5, as 
described in the patent. The standard line is 
fixed beyond question, as als . the coiner station 
23, which is the intersection of that line with 
the west bank of the slough. I retra<'ed all the 
courses, after arriving at that point on the 



50 

Pajaro river, by returnino; to tlie place of begin- 
148 niiig, and retracing each course down to station 
25. T found them unusually correct. There 
was not an error among them, and if the courses 
and distances were followed as given in the field - 
notes, they would fit the river exactly. Then, 
from station marked B. S. C. 10, I ran the 
closing line, along the southwest boundary of the 
rancho, to station 25, on the bank of the Pajaro 
river. I found the actual course and distanc'C 
differed quite materially with that given in the 
patent. The course or distance given in the 
patent for that line, woubl bring me six or eight 
chains north, or above station twenty-five, which 
w6uld be on a high bluff bank of the Pajaro 
river, instead of in a little valley, or bottom land, 
as described in the patent. 

This closing line would not descend into bottom 
land and continue on about nine (9) chains to 
the river, but crosses a small cafiada, and rises 
iigain on high land, and so coiitinues, terminating 
on a high bank or blufl^, on the bank of the 
river. At that time there wasno fence terminat- 
i ig at that point, nor was there any evidence of 
150 any fence ever having terminated at that point. 
I then ran tliat line straight between stations 15. 
S. C 10, and the point where I had re-established 
B. S. C. 11, without regard to coui'ses and dis- 
tances, which / denominate the true line. In 
the calls of the patent there is no topography of 
the country given, on that closing line or course 
24, except '• leaving the slough and over table- 
land," and at " 225 chains it descends into bottom 



51 

land," and at 224 chains and 10 links reaches 
151 the Pajaro river, at the end of the fence, which 
exactly agree with the calls of the patent. 

Question. Can you tell from your know- 
ledge of the pra'3tice of the Surveyor-General's 
Office, and of the Act of surveying, whether or 
not that the 24th course was a surveyed or 
calculated line, taking into consideration the fact 
that the other three sides of the rancho are fixed 
by natural ohjects, and in this connection ex- 
plain the course and practice of the office, where 
the decree is for quantity V 

Ohjtvtion. Fliuntid" objects as incompetent and 
immaterial, thec:)nclusion of the witness not being 
evidence, nor is it capable of being used a^such» 
anil it is likewise irrelevant, and states a hypoth- 
esis not established in this cause, and seeks to 
evoke a conclusion thereupon. 

Answer. There is usually a much greater quan- 
tity within the boundaries (exterior) of Spanish 
grants th;in is given by the decrees of confirnia 
tion. I can tell from my knowledge of the prac- 
tice in the Surveyor-General's Office, and of the 
Act of Surveying, whether thit course. 24, is a 
153 surveyed or calculated line. 1 say it is a calcu- 
lated line, because the other three sides of the 
r.mcho are bounded by ranchosand a tide slough> 
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 



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