74 F.2d 901 (9th Cir. 1935), 7427, City of Los Angeles v. Borax Consolidated Limited

Docket Nº:7427.
Citation:74 F.2d 901
Case Date:January 14, 1935
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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74 F.2d 901 (9th Cir. 1935)




No. 7427.

United States Court of Appeals, Ninth Circuit.

January 14, 1935

Rehearing denied March 25, 1935.

Ray L. Chesebro, City Atty., Robert F. Shippee, Asst. City Atty., and Loren A. Butts, all of Los Angeles, Cal., for appellants.

Newlin & Ashburn, of Los Angeles, Cal. (A. W. Ashburn, of Los Angeles, Cal., of counsel), for appellees.

Before WILBUR and GARRECHT, Circuit Judges.

WILBUR, Circuit Judge.

Appellant brought this action to quiet title to a portion of the shore of Mormon Island, situated within the Inner Bay of San Pedro Harbor. The appellant alleged that it was the owner of certain tidelands by virtue of a grant thereof by the state of California (St. Cal. 1911, p. 1256). These lands are described with particularity by metes and bounds. The appellees answered, denied title in the city, and alleged that the lands were not tidelands, and alleged that they were the owners of the lands described in the complaint. Appellees also, by way of counterclaim, alleged that the land in question belonged to the appellee Borax Consolidated Limited, an English corporation, and also by separate counterclaim alleged that the city was estopped to deny the ownership of said land by the appellee Borax Consolidated Limited, by reason of the inaction of the city and its officials during a long period of time in which the appellees expended more than a million dollars in improvement of the land in question. A third counterclaim sets up an estoppel by a judgment of dismissal which it is alleged was the result of a retraxit by the city and by the state of California in a prior

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action brought by the state of California before it had transferred title to the city of Los Angeles and dismissed after the city had acquired title. The appellees claim under a patent of the United States government issued to William Banning December 30, 1881 under the pre-emption laws of United States (enacted April 24, 1820 (3 Stat. 566)). The description in the patent is as follows:

'Lot numbered one, of section eight, in township five south, of range thirteen west of San Bernardino Meridian, in California, containing eighteen acres, and eighty-eight hundredths of an acre, according to the official plat of the survey of the said lands, returned to the General Land Office by the Surveyor General.'

The plat referred to in the patent contains the following statement with reference to the lot in question: Meanders of shore of Mormon Island, surveyed by W. H. Norway under contract dated March 10, 1880, surveyed March 24, 1880, amount of survey 77 chains and 40 links. Area of land surveyed by Norway 18.88 acres. Meanders of the shore of Mormon Island beginning at the meander corner 1, at ordinary high-water mark; thence along the shore of the island. Then follows a statement of courses and distances from stations 1 to 14 and to the beginning.

(1) It is clear from the plat that the lines in question were meander lines, and therefore that the boundary line of the land covered by the patent is the shore line of Mormon Island and not the traverse lines of the patent. Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 523, 33 L.Ed. 872; St. Paul & P. Railroad Co. v. Schurmeir, 7 Wall (74 U.S.) 272, 19 L.Ed. 74; St. Louis v. Rutz, 138 U.S. 226, 11 S.Ct. 337, 34 L.Ed. 941; Producers' Oil Co. v. Hanzen, 238 U.S. 325, 35 S.Ct. 755, 59 L.Ed. 1330; United States v. Boynton et al. (C.C.A.) 53 F.2d 297; Los Angeles v. S.P., L.A. & S.L.R.R. Co., 182 Cal. 652, 189 P. 449. This was the ruling by the Supreme Court of the state of California in an opinion written by the author of this opinion dealing with a similar description in the patent of Rancho San Pedro as it was affected by the lines of the Inner Bay exception. In that case the plat did not distinctly state that the lines of the patent were meander lines, but it is clearly inferable from the plat that the lines were meander lines. The rule in regard to meander lines is stated by the Supreme Court in Jefferis v. East Omaha Land Co., supra:

'Meander lines are run in surveying * * * public lands bordering upon navigable rivers, not as boundaries of the tract, but * * * as the means of ascertaining the quantity of the land * * * subject to sale, and * * * the water-course, and not the meander line, as actually run on the land, is the boundary.'

In United States v. Boynton et al., 53 F.2d 297, 298, in an opinion written by District Judge James, this court held:

'Thus, the question we have to determine is whether Snow, in indicating a high-tide line, definitely fixed a shore line survey. Meander lines, as used in land surveys, where they indicate a course along navigable waters, refer to the line as the water itself may delineate it, subject to changes that different tides or water flows may work. St. Paul & P.R. Co. v. Schurmeir, 7 Wall. (74 U.S.) 272, 19 L.Ed. 74; Hardin v. Jordan, 140 U.S. 371, 11 S.Ct. 808, 838, 35 L.Ed. 428; Taylor v. United States (C.C.A.) 44 F.2d 531. Because a meander line, as carried into field notes, shows corners, posts, monuments, and courses, does not result in the line so delineated becoming definite and fixed. Some action must have been taken, or words used in the instrument of conveyance, which will show that the grantor has agreed that such line shall be considered as having more than its assigned character; it must be agreed that it indicates a definite boundary limit.'

These principles are insisted upon by the appellant and are not disputed by the appellees. The difference between the parties in the case at bar arises from the fact that, according to the contention of the appellant, the stations 4 to 11, inclusive, and the meander line connecting them, all lie below the line of ordinary high tide. The lands claimed by the appellees lie within the traverse lines connecting stations 3 and 12 of the patent, and north of a line running north 78 degrees 23 inches west, distant 345 feet connecting traverse lines last mentioned, the exact location of which is unnecessary to fix for our present purposes. The appellant's contention is that, inasmuch as the lines bounding Mormon Island are meander lines, the lines themselves may be wholly disregarded in fixing the position and area of the uplands of Mormon Island. The contention of the appellees is that it was the duty of the government surveyor who surveyed Mormon Island to determine the location of the boundary between the uplands which were to be conveyed by patent from the government,

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and the shore which belonged to the state by virtue of its sovereignty, and that the stations purporting to be on the shore line must be held as defining the shore line, and it is claimed...

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