Petition — Gunning v. Gray

United States

——- —————— --

OcToBER TERM 1976

No. 75-1697

SAMUEL O. GUNNING, Ropert E. GUNNING, GLORTA

Suirn, Atvina E. Geracuty, Etta R. Youna

and Maraaret J. McCay,

Petitioners,

VS,

C'.avpe B. Gray and Avprey |. Gray,

Respondents.

———————————elEEEEEEeEeEeaEe=SQ=Sa=S=S=SNElOs—SS————

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal of the State of California,

Third Appellate District

—— EEE lESESESES=E~>~=EOoqqEEEEE—EEE>ES>S>S>>S=SS=S={a={==S==SSS===

Trmoruy J. Evans,

LARIMER & EVANS,

515 D Street. Suite 3

Post Office Drawer J

Marysville, California 9590

Telephone: (916) 742-2347

Counsel for Petitioners.

—

PERNAU - WALSH PRINTING CO.- 562 MISSION STREET - SAN FRANCISCO, CA 94105

Subject Index

Page

IN +, 6 vice ckd buaudinc dba dee oMWAES 0 Genie denhodns 1

IED ncn ds cinadenenual ena tinedsnendnesbbaseetina 1

SE, She cad ie de cin wkiedauis da6kdducdeeabetoiubas 2

IES ELE SE PN ERE POT tee 2

Constitutional provisions and statutes involved ............ 3

Oe GE ich db addweuwdesconcecesoceseseeswe 5

Bi DO ID bb dd ected wctsccccdddl Wied 5

eS Gi I 5s ond s cndaa dehebeoutieus cad 5

| SD Or WD ccicniwsceveonedstoeeeécaseeeee 8

Reasons for allowance of the writ .............cecceeeeees 9

A. While there is no constitutional right to an appeal,

if appellate procedures are established and maintained

all persons within a class must be treated equally .... 9

B. Whether the Uren corner or the McGuire corner is

recognized as the true common corner, property lines

must be determined by reference to the Uren corner 12

EEE 3. kkk oie 60 ee be wes ee bins cn nd keetAcen 12

Table of Authorities Cited

Cases Pages

Cox v. Hart (Cal. 1922) 260 U.S. 427, 48 S.Ct. 154 .... 12

Geraghty v. Gray (1957) 152 Cal.App.2d 344, 313 P.2d

EE ae Pee er ee eee ee Te 7,11

Rinaldi v. Yeager (1966) 384 U.S. 305, 86 S.Ct. 1497 .... 10

U.S. v. MaeMillan (D.C. Nev. 1971) 331 F.Supp. 435 .... 12

U.S. v. Reiman (C.A. Utah 1974) 504 F.2d 135 .......... 12

Vickter v. Pan Pacific Sales Corp. (1952) 108 Cal.App.2d

Se 5 NOT ee 10, 11

Constitutions

California Constitution, Art. 6, Sec. 14 ...............4.. 4

United States Constitution, Fourteenth Amendment, See. 1 3

Statutes

I I asia winasea vue seek noice Geaneeten 4,9, 12

In the Supreme Comt

OF THE

Rnited States

OctToBER TERM 1976

No.

SAMUEL O. GUNNING, Ropert E. GuNNiNG, GLORIA

SmirH, Atvina E. Geracuty, Evita R. Youne

and MarGARET J. McCay,

Petitioners,

Vs.

CLAUDE B. Gray and Auprey I. Gray,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal of the State of California,

Third Appellate District

INTRODUCTION

Petitioners pray that a Writ of Certiorari issue to

review the judgment of the Court of Appeal of the

State of California, Third Appellate District, entered

on January 5, 1976.

OPINION BELOW

The opinion of the Court of Appeal of the State of

California, Third Appellate District, is printed in

2

Appendix A hereto, and is not reported in either the

official California reports, or in the unofficial reports.

JURISDICTION

The judgment printed in Appendix A hereto, which

is sought to be reviewed is dated January 5, 1976, and

was entered on January 5, 1976.

A rehearing by the Court of Appeal of the State

of California, Third Appellate District, was sought

by a petition filed therein on January 21, 1976, and

said rehearing was denied on January 27, 1976.

A hearing in the California Supreme Court was

sought by petition filed therein on February 13, 1976,

which petition was denied, without opinion or com-

ment, on March 3, 1976. A copy of the denial is at-

tached hereto as Appendix B.

QUESTIONS PRESENTED

Petitioners submit that the following questions are

appropriately subject to review by this Court:

1. Does the two page opinion by the Court of Ap-

peal of the State of California, Third Appellate Dis-

trict, which lacks a discussion of the facts of the

case, and adopts two irreconcilable statements of facts,

deny petitioners due process of law;

2. Does the opinion of the Court of Appeal of the

State of California, Third Appellate District, which

3

lacks a discussion of the facts of the case, deny peti-

tioners equal protection of the law;

3. Are petitioners denied due process of law where

the Court of Appeal of the State of California, Third

Appellate District, fails to decide, or even discuss,

claimed errors in restriction of cross-examination and

rejection of evidence, and then determines that the

judgment of the trial court is supported by substan-

tial evidence; and

4. Where the ownership of real property, by re-

spondents’ predecessors in interest, originates by a

patent, based upon an official government survey and

approved map which was subsequently determined to

be inaccurate, can respondents’ property ownership

be extended where the extension encroaches upon

property previously acquired by petitioners or their

predecessors through patents based upon the same

official government survey and map?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The determination of the questions hereinabove pre-

sented involve construction and application of the

following constitutional provisions and staiutes:

1. Constitution of the United States, Amendment

14, Section 1:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or en-

bo

3.

772:

4

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.”

California Constitution, Article 6, Section 14:

“The Legislature shall provide for the prompt

publication of such opinions of the Supreme

Court and courts of appeal as the Supreme Court

deems appropriate, and those opinions shall be

available for publication by any person.

Decisions of the Supreme Court and courts of ap-

peal that determine causes shall be in writing

with reasons stated.”

43 United States Code, Public Lands, Section

“The Secretary of the Interior may, as of March

3, 1909, in his discretion cause to be made, as he

may deem wise under the rectangular system on

that date provided by law, such resurveys or re-

tracements of the surveys of public lands as, after

full investigation, he may deem essential to prop-

erly mark the boundaries of the public lands re-

maining undisposed of: Provided, That no such

resurvey or retracement shall be so executed as

to impair the bona fide rights or claims of any

claimant, entry man, or owner of lands affected

by such resurvey or retracement; Provided fur-

ther, That not to exceed 20% of the total annual

appropriation for surveys and resurveys of the

public lands shall be used for the resurveys and

retracements authorized hereby.”

STATEMENT OF THE CASE

A. Procedural Background.

Respondents herein instituted an action in the

Superior Court of the State of California, County of

Yuba, numbered therein 17649, against petitioners

herein, to quiet title to Lot 4 of Section 29 Township

16 North Range 6 East Mount Diablo Base and

Meridian. A metes and bounds description of Lot 4

of Section 29 was included in the complaint. Peti-

tioners herein denied that respondents were the own-

ers of the real property described in said metes and

bounds description.

Following trial the Court filed a Memorandum of

Decision, indicating judgment in favor of respond-

ents. Within the time allowed by California statutes

and rules, petitioners requested findings of fact and

conclusions of law, and submitted objections to pro-

posed findings, proposed counter-findings, and requests

for special findings.

Following entry of judgment, a notice of appeal

was filed, briefs were submitted, the Court of Appeal

of the State of California, Third Appellate District,

affirmed the judgment, and the Supreme Court of

California declined to hear the matter.

B. Statement of Facts.

On August 19, 1876, a map based upon the field

notes of a U. 8. Government Survey of Township 16

North Range 6 East Mount Diablo Base and Meridian

was approved by the U. S. Surveyor General’s Office.

6

That map showed the establishment of all section lines

and corners within said township and range.

In January, 1888, the Cleopatra Quartz Mine was

surveyed by Charles E. Uren, a U.S. Deputy Mineral

Surveyor, and on March 28, 1888 the U. 8S. Surveyor

General’s Office approved the original field notes and

issued a Plat based thereon. To establish the location

of the Cleopatra claim, Uren made a tie to a point

physically identifiable on the ground, which he be-

lieved to be the true section corner common to Sec-

tions 20, 21, 28 and 29 of Township 16 North Range

6 East. This section corner is hereinafter referred to

as the Uren Section Corner.

The Plat of March 28, 1888 is based upon the Uren

section corner, which causes the Cleopatra claim to

cross the line dividing Sections 20 and 29, thereby

creating Lot 12 of Section 20.

Tho Official Government Survey Plat of March 31,

1904, like the 1888 plat, utilized the Uren Section

Corner and indicates that Lot 4 of Section 29 has

34.91 acres. On December 2, 1952, respondents herein

acquired title to Lot 4 Section 29 by deed, wherein.

the conveyed property was described by reference to

the plat of March 31, 1904, which utilized the Uren

Section Corner as the Northeast corner of Lot 4. The

original patent to respondents’ predecessors in inter-

est likewise describe Lot 4 by reference to the plat

of March 31, 1904. Lot 4, as conveyed by reference to

the Uren Section Corner shown on the 1904 map, con-

tained 34.91 acres.

7

Petitioners are the owners of record of Lot 12, Sec-

tion 20; Lot 5, Section 29; Lot 4, Section 28; and

Lot 48—the Cleopatra Lode—which is located in See-

tions 28 and 29. All of the aforesaid lots adjoin Lot

4, Section 29.

On May 4, 1954, petitioners herein, or their prede-

cessors in interest, instituted proceeding number 12404

in the Superior Court of the State of California in

and for the County of Yuba to quiet title to the Cleo-

patra Lode, located in Sections 28 and 29. In the

determination of action number 12404 the Court

found that the true section corner common to Sections

20, 21, 28 and 29 was located on a point designated

as such on a map based upon a survey by T. H.

McGuire and Son, rather than at the point located

and utilized in the 1888 and 1904 Plats (the Uren

Section Corner). The Court further found that the

Uren corner was located some 300 feet Southerly on

a tangent from the section corner shown in the Mc-

Guire and Son map (hereinafter referred to as the

McGuire Section Corner). This decision by the trial

court was affirmed by the Court of Appeal of the

State of California, Third Appellate District, in

Geraghty v. Gray (1957) 152 Cal.App.2d 344, 313

P.2d 102, wherein the Court of Appeal affirmed that

the Uren Section Corner, as shown on the 1888 and

1904 plans, was incorrect.

In Yuba County Action number 17649 the respond-

ents sought to quiet their title to the property lying

between the section lines, as based on the McGuire

Section Corner, and the section lines as they related

to the Uren Section Corner. The following chart de-

picts the area in controversy:

va Uren See Gava

Mc6urnc Gave

2.1

ae eT TR TE Ve “2.2

g

Secriow 24 Pn

= section lines based on

McGuire section corner

—-- = section lines from 1904

Map, based on Uren ee

section corner

//// = area now claimed by

Respondents

C. Assignment of Error.

In the course of the tvial of this matter, petitioners

attempted to offer evidence to establish that the Uren

corner was in fact physically distinguishable from the

McGuire corner, and that recognition of the McGuire

corner, for purposes of establishing property lines,

would interfere with and alter the established prop-

erty ownership of petitioners. These offers of evi-

dence are set forth in the Reporter’s Transcript on

appeal at the following points:

“96 :12-100 :15

101 :8-103 :13

118 :26-120 :25”

9

The mandatory provisions of 43 U.S.C. §772 were

pointed out to the trial court prior to decision in

formal briefs filed with the trial court, and, following

decision, in petitioners’ proposed counter-findings,

proposed corrected conclusions of law, ana requests

for special findings. Clerk’s Transcript on Appeal,

pages 23-29.

The applicability of 43 U.S.C. $772, and the exclu-

sion of evidence offered in reliance upon the authority

of the indicated statute, were brought to the attention

of the Court of Appeal in Appellants’ Opening Brief

filed with the Clerk of the Court of Appeal on or

about September 25, 1975.

The deficiencies in the judgment of the Court of

Appeal of the State of California, Third Appellate

District were brought to the attention of that Court

in the Petition for Rehearing, and these matters were

presented to the California Supreme Court in the

Petition for Hearing.

REASONS FOR ALLOWANCE OF THE WRIT

A. WHILE THERE IS NO CONSTITUTIONAL RIGHT TO AN

APPEAL, IF APPELLATE PROCEDURES ARE ESTABLISHED

AND MAINTAINED ALL PERSONS WITHIN A CLASS MUST

BE TREATED EQUALLY.

While not constitutionally required to do so, Cali-

fornia does provide for appeal, as a matter of right,

from judgments rendered by Superior Courts within

the State of California. While court rules and stat-

utes specify, in detail, the manner in which an appeal

must be instituted, preparation of the record, form

10

and contents of briefs, presentation of oral arguments,

and requests for reconsideration, petitioners are un-

able to locate any statutes or rules which define the

obligation of the reviewing courts in terms of decid-

ing appeals.

The reviewing courts in California themselves, how-

ever—at least where published opinions are con-

cerned—have generally written full scale opinions,

with relatively complete coverage of the facts, issues

and authorities. The reason for such an approach was

enunciated in Vickter v. Pan Pacific Sales Corp.

(1952) 108 Cal.App.2d 601, 239 P.2d 463 as follows:

“« _. [B]ut reviewing courts are required to state

in writing the reasons for their decisions. And

the right to petition the Supreme Court for hear-

ing renders it necessary that the opinions of the

District Courts of Appeal state the case fully

and fairly as to the controlling facts and the per-

tinent rules of law. Memorandum decisions, hew-

ever desirable, would not meet the requirements

of the present system.”

Where a right of appeal is granted to one litigant,

but there is a failure to make the same grant to an-

other litigant, there is a denial of equal protection of

the laws, and a violation of California and United

States constitutional standards. This court, in Rinaldi

v. Yeager (1966) 384 U.S. 305, 310, 86 S.Ct. 1497,

1500, held that unequal ease of access to the appellate

process amounted to a denial of equal protection. In

the instant situation, the cursory statement by the

Court of Appeal represents unequal treatment, rather

than unequal access, as is demonstrated by numerous

——— ee ——

11

deficiencies in the decision, including but not limited

to the following:

i. The opinion adopts the statements of facts from

both petitioners’ brief, and respondents’ brief, and

these statements are totally irreconcilable, since peti-

tioners’ statement is based on the premise that the

Uren Section Corner has a physical location that

differs from that of the McGuire Section Corner;

2. It is impossible to adopt petitioners’ statement,

together with the included premise, and yet hold that

respondents’ statement, adopted by the trial court,

rests upon substantial evidence since respondents con-

tended, contrary to the holding in Geraghty v. Gray

(1957) 152 Cal.App.2d 344, 313 P.2d 102, that the

Uren and McGuire corners had the identical physical

location ;

3. The Court of Appeal completely overlooked

questions relative to exclusion of evidence on the ex-

istence of two physically separate corners, and on the

issue of impairment of vested rights, should the Me-

Guire corner be recognized.

Similarly, from the point of view of due process,

an appeal is not required; on the other hand, the

rules governing appeals must operate uniformly, and

in a manner which will not negate further rights or

remedies that the State may provide under the cir-

cumstances. Vickter v. Pan Pacific Sales Corp., supra,

108 Cal.App.2d 601, 603.

12

B. WHETHER THE UREN CORNER OR THE McGUIRE CORNER

IS RECOGNIZED AS THE TRUE COMMON CORNER, PROP-

ERTY LINES MUST BE DETERMINED BY REFERENCE TO

THE UREN CORNER.

The applicability of 43 U.S.C. 772 to situations

imilar to those presented in the instant case has

been frequently recognized, both by federal courts and

by state courts. U.S. v. Reiman (C.A. Utah 1974) 504

F.2d 135; U.S. v. MacMillan (D.C. Nev. 1971) 331 F.

Supp. 435. A survey of public lands does not ascertain

boundaries, but creates them. Coz v. Hart (Cal. 1922)

260 U.S, 427, 43 S.Ct. 154.

In rendering judgment for respondents herein, the

California Court of Appeal has ignored 43 U.S.C.

772, together with the cases construing same, and have

allowed subsequent surveys to impair vested rights.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that this Petition for a Writ of Certiorari

should be granted.

Dated, May 19, 1976.

Trmorny J. Evans,

LARIMER & Evans,

Counsel for Petitioners.

(Appendices Follow)

APPENDICES

Appendix A

(NOT TO BE PUBLISHED IN OFFICIAL REPORTS)

In the Court of Appeal

State of California

Third Appellate District

(Yuba)

3 Civil 15198

(Sup.Ct.No. 17649)

Claude B. Gray and Audrey I. Gray, )

Plaintiffs and Respondents,

vs.

Samuel O. Gunning, Robert E. Gunning, |

Gloria Smith, Alvina E. Geraghty,

Ella R. Young and Margaret J. Mc-

Cay,

Defendants and Appeilants. J

[ Filed Jan. 5, 1976]

By THE Court:

This is a quiet title action. Judgment was for

plaintiffs and against defendants, quieting plaintiffs’

title to certain described lands, portions of which were

claimed by defendants. Defendants have appealed

from the judgment. The statements of facts con-

tained in respondents’ and appellants’ briefs fairly

summarize the evidence and are incorporated herein

by reference.

On appeal we must look at the evidence in the

light of certain well-established rules. We must view

it in the light most favorable to respondents and

must draw all inferences which support the trial

court’s findings, (Nestle v. City of Santa Monica

(1972) 6 Cal.3d 920, 925-926; Cecka v. Beckman &

Co. (1972) 28 Cal.App.3d 5, 14.)

Our review of the record in this case in the light

of the above rules has convinced us that the findings

of the trial court are not inconsistent, ambiguous or

unsupported by the evidence as contended by defend-

ants. The findings are supported by substantial evi-

dence, the conclusions of law are supported by the

findings, and the judgment is supported by the find-

ings and conclusions. Under such circumstances, we

cannot reverse even were we to draw different in-

ferences from the evidence than the trial court. (See

Fallert v. Hamilton (1952) 109 Cal.App.2d 399, 404;

Drzewiecki v. H & R Block, Inc., (1972) 24 Cal.App.

3d 695, 705-706; ef. Geraghty v. Gray (1957) 152 Cal.

App.2d 344.)

The judgment is affirmed.

For the Court:

Puglia, P.J.

Friedman, J.

Evans, J.

Appendix B

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

Mar 3 1976

I have this day filed Order Hearing Denied

In re: 3 Civ. No. 15198

Respectfully,

Gray vs. Gunning

G. E. Bishel

Clerk