inal survey prior to the time Eggers deeded to the county. In 1890, Eggers had all of section 23 surveyed and platted by a surveyor named Tielman, who subdivided the section into lots numbered from 24 to 59 inclusive, which survey was called the plat of the Eggers colony. In making this survey the surveyor found all the original redwood stakes as set by Manuel, and which were in the ground at the time Eggers made the deed to the county. This plat located the south boundary of the south tier of lots of said section 23 the same as the northerly line of the sixty feet right of way as fixed with reference to the stakes originally set by Manuel. Eggers, in having the survey and plats made of the Eggers colony, treated the deed to the county as fixed and located by said stakes so originally set. This survey and plat was filed for record by Eggers. The defendant afterward (but at what time does not appear) became the owner of lot 32 of the property so platted for Eggers. It does, however, appear that defendant knew of the stake at the southeast corner of the section and of the south boundary of his lot, which did not include the place where he built the fence which is here claimed to be a nuisance. Defendant purchased with full knowledge of the construction which had been placed upon the deed by Eggers when he conveyed to the county and with full knowledge as to the south boundary of lot 32 as fixed by the Eggers map. The county accepted the deed and the public traveled the road as a highway after the conveyance was made to it. A furrow was at first run so as to mark the line of the road, but the road was not completely graded until 1905. During the year 1905, at the request of defendant, about twenty years after the first survey had been made, Manuel resurveyed the township. In making this resurvey Manuel states that, by measuring the township north and south between the township line and the line between sections 23 and 26, he found an overplus of thirty-nine feet, and that he divided this excess of thirty-nine feet between the sections so "that would bring the line of Wier's place in the neighborhood of 13 or 14 feet below the place where his first row of vines is." In other words, by the resurvey made by Manuel in 1905, disregarding the stakes he originally set in the ground so as to designate the lines, he made the south line of defendant's lot about thirteen or fourteen feet far

ther south than the line was made by the Eggers map, thus taking thirteen or fourteen feet, a portion of the highway as located by Eggers at the time he conveyed to the county.

It is not necessary to decide as to whether or not the last survey made by Manuel is the correct one. When Eggers conveyed to the county he owned the entire tract through which the right of way was granted, and the reference in the deed to the section line separating sections 23 and 26 was made with reference to the line as he had located it by his own surveyor. It conveyed the strip of land precisely as if the description had commenced at one of the stakes at the section corner and gone around the entire sixty feet, closing at the same stake. Eggers so understood it when he made the deed; he continued to so understand and construe it when he had the section surveyed and platted and defendant knew his said boundary as located by the Eggers colony map when he purchased. Defendant still owns undisturbed all the land described in lot 32 of the Eggers colony; he may not disturb the county in its ownership of all that Eggers had conveyed to it prior to the time defendant came upon the scene.

This construction leaves each grantee undisturbed as to the lands described in the conveyance under which they respectively took. When land has once been conveyed with reference to stakes and monuments which were fixed and in place at the time of such conveyance the conveyance cannot be afterward defeated by a new survey which shows that the stakes and monuments as originally set were not as a matter of fact in their true places. A contrary rule would upset titles and make all conveyances more or less uncertain. It is always the endeavor of courts to ascertain the intention of the parties in applying the description contained in a deed to the monuments referred to therein so as to locate the land in accordance with the intention of the parties.

The construction we have given the deed to the county is in accord with the rule as laid down time and time again by the supreme court.

In Helm v. Wilson, 76 Cal. 476, [18 Pac. 604], the deed described the land as being in the southeast instead of southwest quarter of a certain section; but the court held that if the land intended to be conveyed could be identified by monuments actually fixed upon the ground, the mistake as to the

subdivision in which the land was really located was falsa demonstratio.

In Kaiser v. Dalto, 140 Cal. 168, [73 Pac. 828], it was held that the boundaries of city lots as originally located on the surface of the earth must govern, and a line shown by monuments as platted by the city authorities, and acquiesced in for many years, must control courses and distances, and cannot be overturned by measurements afterward made by a surveyor. We repeat what was there said: "The testimony of surveyors on the part of defendants was sharply in conflict with the above as to the division line by a survey by courses and distances. The defendants' surveyors took the monumental line of Green street as they located it. They found an original line monument at a point on Union street near Hyde, thence from the line of Union street across the block to Green street, a distance of 275 feet, thence 68 feet across Green street, and thence 68 feet and 9 inches to the line of defendant's lot. These surveys may have been correct by courses and distances, but in the course of thirty or forty years a change in the position of the monuments on the surface of the earth might easily cause a variation of four or five inches. The lines as originally located must govern in such cases. The survey as made in the field and the lines as actually run on the surface of the earth at the time the blocks were surveyed and the plats filed must control. The parties who own the property have a right to rely on such lines and monuments. They must, when established, control courses and distances. A line, as shown by monuments and as platted by the city authorities, and as acquiesced in for many years, cannot be overturned by measurements alone." (See further Penry v. Richards, 52 Cal. 496; Bullard v. Kempff, 119 Cal. 9, [50 Pac. 780]; Diehl v. Zanger, 39 Mich. 601.)

There is no merit in the suggestion that the county only used the central portion of the right of way and did not accept the right of way for the full width of the sixty feet because it did not use all of the sixty feet up to the south boundary of defendant's land. The county accepted the right of way by entry upon and using the same as a public highway and expending public moneys thereon. Its acceptance was 11 Cal. App.-24

as broad as the grant, although it did not use the entire width of the right of way. The question is entirely different from the construction given to the width of a right of way where the right of way is claimed entirely by prescription or user. In such case the public cannot claim a constructive dedication or a constructive title to land which in fact was never used or traveled over by the public.

There is no merit in any of the other contentions of defendant.

The judgment and order are affirmed.

Hall, J., and Kerrigan, J., concurred.

[Civ. No. 637. First Appellate District.-September 25, 1909.] JOSEPHINE PETERSON, Administrator of Estate of MICHEL CARTIER, Deceased, Appellant, v. W. J. NESBITT, Sheriff of County of Monterey, Respondent. ARREST OF DEFENDANT IN ACTION-SUIT AGAINST SHERIFF FOR ESCAPE -EXCLUSION OF AFFIDAVIT-NONSUIT.-Where the defendant in a civil action was arrested, and a suit was brought against the sheriff for an escape, in which the affidavit for arrest was excluded, and the plaintiff was nonsuited, the correctness of the ruling of the court depends on whether the affidavit for the arrest was sufficient to invest the court with jurisdiction to make the order of arrest. ID. INSUFFICIENT AFFIDAVIT COPY OF COMPLAINT CAUSE OF ACTION NOT SHOWN - TRUTH OF CONTENTS NOT STATED - MATTER OF OPINION.-An affidavit for an order of arrest is insufficient where it merely sets forth a copy of the complaint, and does not make oath to the truth of any matter contained therein, but merely states the opinion of the affiant that it states a cause of action. ID.-ABSENCE OF LIABILITY FOR PERJURY.-Where no prosecution for perjury would lie against the affiant predicated upon the falsity of any of the matters set forth in the complaint, it is radically insufficient.

ID. GENERAL STATEMENT THAT CAUSE OF ACTION EXISTS-MATTER FOR COURT FACTS CONSTITUTING CAUSE OF ACTION ESSENTIAL.-A mere general statement that a cause of action exists is insufficient, as this is matter for the judge to determine. It is essential that

the facts constituting the cause of action must be set forth and sworn to in the manner required by the statute. ID.-JURISDICTION TO ISSUE ORDER OF ARTEST-DEPENDENCE UPON AFFIDAVIT. The jurisdiction to issue an order of arrest in a civil suit rests upon the affidavit, and where the affidavit in an essential particular fails to meet the requirements of the law, the court is without jurisdiction to issue the order for arrest.

ID.-NONSUIT IN ACTION AGAINST SHERIFF PROPERLY GRANTED.-Held, that the court did not err in the action against the sheriff, in sustaining the objection to the offer of the affidavit, or in granting the motion for a nonsuit.

APPEAL from a judgment of the Superior Court of Monterey County. John E. Richards, Judge presiding.

The facts are stated in the opinion of the court.

J. H. Andresen, and W. S. White, for Appellant.

Daugherty & Lacey, for Respondent.

HALL, J.-Plaintiff brought this action against the defendant, who is the sheriff of Monterey county, to recover damages for allowing the escape of one Marcelin Cartier, who had been arrested upon mesne process in a civil action, brought by this plaintiff against said Marcelin Cartier. At the trial plaintiff offered in evidence the affidavit upon which the order of arrest had been made, but upon objection of defendant the court refused to admit it in evidence, and as a result plaintiff was unable to prove her case, and at the close of her testimony the court granted defendant's motion for a nonsuit. The appeal is from the judgment of nonsuit entered in accordance with this order.

The only question to be determined is as to whether or not the court erred in sustaining defendant's objection to the introduction of the affidavit for the order of arrest.

The correctness of the ruling of the court depends upon whether or not the affidavit upon which the order of arrest was based was sufficient to invest the court with jurisdiction to make the order. The statute (Code Civ. Proc., sec. 481) provides that: "The order may be made whenever it appears to the judge, by the affidavit of the plaintiff, or some other person, that a sufficient cause of action exists, and that the