Andrew McNamee.

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

. (page 1 of 4)
Online LibraryAndrew McNameeAndrew McNamee, respondent, vs. Daniel McCusker et al., appellants. Transcript on appeal. B.S. Brooks, for appellants. A. Craig, for respondent → online text (page 1 of 4)
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In the Supreme Court








if tmsif Iff %% mttiii^

R S. BK0UK8,

for Appellants.

for Respondent.

San Francisco :

IVotnetis Unio?i Prun^ 424 Montgomery Street.


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Cop. ±



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






Smith's Survey, Exhibit A 27-32

Survey of Rancho San Cayetano 33

Stipulation as to testimony of S. TV


Testimony of J. E. McFarlin 34

u (i u 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

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

Craig & Barham,
g Plaintiff's Attorney.

(Endorsed) Filed Feb. 24, 1869.

[title of court and cause.]


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.]


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 defj(), 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-


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

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


There being no objection, it was admitted in

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


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

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


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.


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


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

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 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



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-


Re-direct Examination.

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.


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 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.


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



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

1 3 4

Online LibraryAndrew McNameeAndrew McNamee, respondent, vs. Daniel McCusker et al., appellants. Transcript on appeal. B.S. Brooks, for appellants. A. Craig, for respondent → online text (page 1 of 4)