Gibson v. Cobb

• Decision Date: 30 July 1965
• Citation: 46 Cal.Rptr. 57,236 Cal.App.2d 226
• Court: California Court of Appeals Court of Appeals
• Parties: Rue C. GIBSON, Plaintiff and Respondent, v. James Edwin COBB et al., Defendants and Appellants. Civ. 379.

Page 57

46 Cal.Rptr. 57

236 Cal.App.2d 226

Rue C. GIBSON, Plaintiff and Respondent, v. James Edwin COBB et al., Defendants and Appellants.

Civ. 379.

District Court of Appeal, Fifth District, California.

July 30, 1965.

Claude L. Rowe, Fresno, for appellants.

Stammer, McKnight, Barnum, Bailey & Barnett and Stephen Barnett, Fresno, for respondent.

RALPH M. BROWN, Justice.

This is an appeal from a judgment in favor of the plaintiff in a quiet title action. San Joaquin Rock Company, Jack Savage and Duane M. Folsom, defendants in the court below, own property adjacent to the north of the lands of the plaintiff. The boundary line between these properties was adjudicated and no appeal therefrom followed. The controversy on this appeal revolves around the boundary line between the lands of the plaintiff and the lands of defendants James Edwin Cobb and Ruby L. Cobb, hereinafter referred to as defendants. The plaintiff and the defendants own lands between which the San Joaquin River flows in a general southwesterly direction. The uplands of the plaintiff border upon the southeast bank of the riverbed in Fresno County (hereinafter referred to as the Fresno side). The uplands of the defendants border upon the northwest bank of the riverbed in Madera County (referred to as the Madera side). Plaintiff brought the action to quiet title in himself to the center or thread of the stream which flows in a deeper channel near the Madera high bank of the river, approximately 901 feet long, and for damages for conversion of rock. The plaintiff's theory is that the deepest natural channel of the river was always in its present location near the Madera side. Defendants claimed title to the riverbed past the flow of the stream to a line nearer the Fresno bank of the river. The disputed area embraces a cobble bench which was formerly part of the bed of the stream but is now exposed and dry except in times of unusual water flow. It is the defendants' theory that, prior to the construction of Friant Dam, which was commenced in November 1939 and completed in August 1941, some several miles upstream, the main channel or thread of the river ran on the Fresno side of the river; ¹ that the present channel was artificially created by the construction of the dam and other activities of man; that the last natural channel fixed the boundary line; and hence, the disputed area of the riverbed is on their land. Defendants state that because the United States is empowered to acquire water rights in the San Joaquin River by physical seizure (Dugan v. Bank, 372 U.S. 609, 83 S.Ct. 999, 1,000, 10 L.Ed.2d 15), therefore, by its so doing, even though there is water coming down the old channel, such channel now becomes an artificial channel or has changed and therefore the center line of the deep water would be based on the aerial photographs taken prior to the completion of Friant Dam, and therefore at the time of seizure the deepest channel of the San Joaquin River was flowing on the Fresno side of the river. The trial court rejected the defendants' theory and their claimed location of the boundary line and sustained the position of the plaintiff as to its location. Defendants brought this appeal.

Defendants attack the judgment by a back-door approach. They first contend that:

'The finding of the trial court that the center of the existing artificially created channel of the San Joaquin River is the boundary between the lands of respondent and appellant is not sustained by any substantive evidence in the record and is contrary to law.'

The basic difficulty with the defendants' arguments on this point is that they are attacking a finding which does not exist either expressly or by fair implication from the findings as made. The prior probative fact that the existing channel was artificially created is the essential foundation of the defendants' claim of title. It was the very fact in issue which the trial court determined adversely to them. Had the court found that the present channel was artificially created and the natural channel was elsewhere, the outcome undoubtedly would have been favorable to the defendants. But it did not. By the complaint the plaintiff pleaded ultimate facts of ownership, i. e., that he was the owner in fee and in possession of the land in question, without special allegations showing how such ownership and possession were acquired. The trial judge found, in part:

'At all times alleged in said complaint plaintiff has been and now is the owner and in possession of the following described real property, and none of the defendants herein has had or has any estate, title or interest in or to said real property.'

Implicit in that finding of ultimate fact is the sub silentio finding that the existing main channel of the stream is the natural deep channel, not one artificially created. Also implicit in that finding is a further finding as to the location of the legally recognizable channel and the thread or center thereof.

A finding conceived and born in the mind of counsel, contrary to the findings as made by the court, cannot be the legitimate subject of an attack on appeal. What, then, is the duty of the appellate court? Must it sua sponte show that the true findings are supported by substantial evidence? The task of this court is to determine whether there is substantial evidence to support the findings as made by the trial court.

Where the defendants contend that the evidence is insufficient to support the findings, it is the rule that 'Such contention requires defendants to demonstrate that there is no substantial evidence to support the challenged findings.' (Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550, 552.) In a boundary dispute the question of the legally recognizable boundary line is an issue of fact. (Luginbuhl v. Hammond, 179 Cal.App.2d 350, 355, 3 Cal.Rptr. 582.) 'The appellate court must accept as established all facts and all inferences favorable to respondent which find substantial support in the evidence' (New v. New, 148 Cal.App.2d 372, 383, 306 P.2d 987, 994), and must reject those that will support a contrary conclusion (Cottle v. Gibbon, 200 Cal.App.2d 1, 4, 19 Cal.Rptr. 82). It must be assumed that every factual conflict was resolved by the trial judge in favor of the prevailing litigant (Estate of Bristol, 23 Cal.2d 221, 223, 143 P.2d 689); and if two or more deductions may be reasonably drawn from the evidence, the reviewing court lacks the power to substitute its deduction for that of the trial judge. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183.) These rules apply to boundary dispute cases. (Cottle v. Gibbon, supra; Chandler v. Hibberd, 165 Cal.App.2d 39, 60, 332 P.2d 133; Luginbuhl v. Hammond, supra.)

At the commencement of trial it was stipulated that the San Joaquin River, at the location in controversy, is a nonnavigable river; that the boundary line between the property of the plaintiff and the property of the defendants is the center line of the river; and that their respective deeds carry title to the center line of the river, wherever that center line may be found.

Section 830 of the Civil Code provides, in pertinent part:

'Except where the grant under which the land is held indicates a different intent, * * * when it borders upon a navigable lake or stream, where there is no tide, the owner takes to the edge of the lake or stream, at low-water mark; when it borders upon any other water, the owner takes to the middle of the lake or stream.'

(See also Code Civ.Proc. § 2077, subd. 5.)

The leading California case of Bishel v. Faria, 53 Cal.2d 254, 1 Cal.Rptr. 153, 347 P.2d 289, dealt with an action to adjudicate the common boundary line of properties which adjoined in the middle of the San Joaquin River. The Supreme Court was squarely faced with the question: Where is the middle of the river located as a matter of law? After summarizing several rules obtaining in various jurisdictions, the court said at page 259, 1 Cal.Rptr. at p. 156, 347 P.2d at p. 292:

'The better rule appears to be that stated in Horton v. Niagara, Lockport & Ontario Power Co., 231 App.Div. 386, 247 N.Y.S. 741, 752-753: 'In order to determine just where the center of the channel is, it is necessary to determine what constitutes such center line * * *. Water always seeks its lowest level. If the deepest part of a channel is well to one side, and the equidistant rule is applied, the riparian owner upon the shallow side would in times of drouth, be shut off from access to the water which is supposed to flow past his door, without trespassing upon the lands of his neighbor, as the exact middle of the stream would be on dry land. In the very nature of things, the thread or center of a stream must be the line which would give to the owner upon either side access to the water, whatever its stage might be, and particularly at its lowest flow. Upon principle, therefore, it would appear that the thread of a nonnavigable river is the line of the water at its lowest stage.' This same rule was followed in Hardt v. Orr, 142 Neb. 460, 6 N.W.2d 589, 593; Micelli v. Andrus, 61 Or. 78, 120 P. 737, 741; see 93 C.J.S. Waters §§ 71, 72; II Farnham, supra, § 417, p. 1462.'

As to the contention of the defendant in that case that the high banks of the river should be used in determining the boundary line, the court said at page 261, 1 Cal.Rptr. at p. 157, 347 P.2d at p. 293:

'Under the authorities herein cited [citations] the line of ordinary high water should not be taken as the basis from which to determine the center of the river. The rule that the thread of a nonnavigable river is to be ascertained from the measurement of the water at its lowest stage appears to be a logical one for the determination of the imaginary line known as the thread of a nonnavigable river or the middle of the main channel thereof. This rule was applied but was not specifically stated in Drake v. Russian River Land Co., su...