Bullard v. Kempff, 119 Cal. 9 (1897), 50 P. 780
In this case one Hinckel built a series of houses on a steep San Francisco street with a retaining wall on each lot line. Kempff's prospective buyer had a survey which, naturally, determined everyone is "off":
Bullard v. Kempff, 119 Cal. 9, 11 (1897), 50 P. 780, 781:
The deeds by which these lots were conveyed by Hinkel described them by metes and bounds, the several points of beginning being stated to be a point on the north line of Clay street a given number of feet and inches easterly from the east line of Webster street; the lots having each a frontage of 27 feet and 2 inches and a depth of 127 feet 8 1/4 inches. According to an affidavit made by A. H. Sanborn, a deputy of the city surveyor who recently surveyed defendants' lot, the gutter way of defendants' house projects about Û÷four inches and to the true lineÛª between the lots of plaintiff and defendants; that the bulkhead, which is about three feet high, extending from the front of the house to the street, and from the rear of the house to the rear of the lot, is wholly upon the land described in defendants' deed, as surveyed by him.
The defendant had successfully moved to have the Plaintiff's temporary injunction to prevent removal of the bulkhead by the defendant. Plaintiff appealed and the Court reversed the order removing the temporary injunction.
The case cites Justice Cooley's concurring opinion as authority and quotes the most famous passage.
Bullard v. Kempff, 119 Cal. 9, 16 (1897), 50 P. 780, 783:
In the absence of any evidence that Hinkel gave like information to Bullard at the time of his purchase, such evidence is inadmissible to change or affect the lines marked by Hinkel himself upon the ground by the erection of the fences. It is inconsistent with the fact that he put the purchasers, respectively, in possession of all the ground within the lots as marked by the fences; and if, before accepting the deeds, they had procured an accurate survey to be made, each might well have objected that the deed tendered to him did not accurately describe the lot he had purchased. I do not think it necessary to discuss the question of long acquiescence as the source of a right not originally possessed by the plaintiff, whether operating by way of estoppel or otherwise; but it should have great weight upon the question whether the injunction should be continued until the trial. So, too, upon the facts before us the question of adverse possession need not be considered; for, if the fences constitute monuments which control the call in the respective deeds as to the distance from Webster street, each party has occupied only the ground conveyed to him, and, if the monuments control the description in the deed, it must also control the description in the assessment roll. I advise that the order appealed from be reversed, with directions to the court below to deny the motion.
I especially like this:
"It is inconsistent with the fact that he put the purchasers, respectively, in possession of all the ground within the lots as marked by the fences (by "fences" I assume bulkhead/retaining wall); and if, before accepting the deeds, they had procured an accurate survey to be made, each might well have objected that the deed tendered to him did not accurately describe the lot he had purchased. "
B-)
