Vines v. Whitten

4 Cal. 230

• Court: California Supreme Court
• Decided: July 15, 1854
• Status: Published

Opinion

Mr. Justice Heydenpeldt

delivered the opinion of the

Court. Mr. Ch. J. Murray concurred.

The County Surveyor’s Act is explicit in excluding, as evidence, the surveys of any other than the County Surveyor, except in those cases where it may be necessary to rebut or explain the official survey.

It is said here, by the respondent, that no survey was introduced in evidence. I cannot see how this position is maintained. To admit in evidence a survey, is certainly not confined to the presentation of a map, or plat. A survey is the result of measurement and calculation, and can be detailed from memory by a witness, as well as defined by a diagram. The witness Squib described a survey he had made, in order to find the lines and corners of Lusk’s survey, by which the land in the complaint is described. This was a re-survey. It is the object of the Act, wherever such a step is necessary, * that it shall be performed [231] by the County Surveyor, and a record of it kept in his office.

In order the better to enforce this design, all other surveys are excluded from evidence, except when necessary to impeach that of the County Surveyor, or, in the language of the Act, to explain, or rebut it.

The policy of the Act is, I think, very obvious, and in all respects so commendable, that it ought to be maintained to its full effect.

The judgment is reversed and the cause remanded.