Simas

The defendants have appealed from the judgment herein quieting plaintiff’s title to certain lands described in the complaint.

The Somplaint alleges that the plaintiff is the owner of a “portion of lot 1 and all of lots 2 and 3 and portion of the south Yz of northwest ^4, all in section 33, township 44 north, range 8- west, Mount Diablo Base and Meridian,” particularly describing such lands, as well as other lands not in controversy here, and prays for judgment quieting plaintiff’s title thereto. Defendants denied the foregoing allegation of the complaint and, for cross-complaint, alleged that defendants are the owners of the south half of the northwest quarter and lots 1 and 2 of said section 33, containing 90.40' acres, and prayed for judgment quieting- their title thereto. Plaintiff answered the cross-complaint, denying defendants’ title to the lands therein described, and alleging that plaintiff is the owner of the whole thereof. Of the lands so in controversy, the judgment quiets plaintiff’s title to about 25 acres hut is silent as to the remainder.

In 1856 C. C. Tracy, a deputy United States surveyor, surveyed a tract of land in said township 44 three miles in length from…